Swiss labour law generally provides for freedom of dismissal. There is no need for a special reason for termination. Accordingly, there is no compulsory requirement that reasons must be given for termination.
Statement of Reasons for termination
The terminated party can request a statement of the reasons for the termination This right is provided for in the case of ordinary termination (Art. 335 para. 2 CO) and termination without notice (Art. 337 para. 1 CO).
As a rule, only employees request a statement of reasons for the termination.
Thus, reasons for termination must be given at the request of the dismissed party in the following cases:
- Termination during the probationary period
- Ordinary termination
- Summary dismissal
Purpose of the statement of reasons for the termination
The reasons for the dismissal serve to assess whether the dismissal is wrongful or whether the termination without notice was wrongful.
If an employee requests a statement of reasons for the dismissal, it can be assumed that he or she wants to check whether the dismissal could be abusive or, in the rarer case of summary dismissal, whether it was wrongful.
Employers are advised to take special care when formulating the reasons for dismissal.
Form and requirements for the statement of reasons
The statement of reasons must be issued in writing (Art. 335 para. 2 CO and Art. 337 para. 1 CO). It is possible to first give oral information on the reasons for termination and to hand over or send the written reasons at the same time or at a later date. There is no entitlement to the reasons being explained orally.
The law does not specify any further requirements for the statement of reasons. The written statement of reasons serves to assess whether the termination is abusive or whether the termination without notice is unjustified. From this, case law derives that the statement of reasons must be true and complete.
An untrue statement of reasons does not give rise to a presumption that the termination is wrongful (BGE 121 III 60, E.3.b). However, the untruthfulness or incompleteness can be taken as an indication of wrongfulness.
Deadlines
The law does not set a time limit for when the statement of reasons should be requested, nor does it set a deadline for when the written statement of reasons must be issued.
In view of the fact that the statement of reasons is used to assess the prospects of litigation in the case of unfair dismissal or dismissal without notice, and that in the case of unfair dismissal an objection must be raised by the end of the employment relationship and legal action must be initiated by 180 days after termination, a long delay until the statement of reasons is requested is not advisable.
The statement of reasons should be issued within a reasonable time after it is requested.
If the statement of reasons is not issued, the other party may be given a deadline for its issue. If necessary, the statement of reasons can be sued for. As a rule, however, the refusal to issue the statement of reasons is used in a different way, namely as an indication of a possible wrongfulness.
Refusal to issue the statement of reasons
The law does not provide for any consequences if the issue of the statement of reasons is refused. The termination is effective even without a statement of reasons.
The refusal to issue the statement of reasons does not give rise to a legal presumption that the termination is wrongful or that there is no good cause for termination without notice (BGE III 60, E.3.b).
However, the refusal to give reasons may be taken as an indication of possible wrongfulness or the absence of good cause (assessment of evidence). The refusal of the statement of reasons may also be taken into account in the distribution of court costs at the expense of the refusing party.
Objection period in particular
Some literature advocates that the refusal to give reasons for the dismissal could be grounds for a grace period to object to the dismissal (abusive dismissal) and that the (employer’s) invocation of the lack of objection could be abusive if there are special circumstances. The law does not provide for exceptions in the case of a missed objection deadline and as far as can be seen the case law is strict in the case of a missed deadline.
Further reading
