Unless otherwise agreed or prescribed, termination can be effected by WhatsApp or SMS.
Form of termination
The question of the permissible form of termination arises only with indefinite employment contracts, as only these can be terminated. Fixed-term employment contracts end without the need for termination by the expiration of the agreed duration.
The Code of Obligations does not prescribe a specific form for terminating employment contracts (Art. 335 CO). Therefore, employment contracts can be terminated in any form:
- In writing (letter, registered mail, fax, email, text message such as SMS and WhatsApp, etc.)
- Orally
- By phone
- Through conduct implying termination
For both employers and employees it is important to be able to prove that termination has occurred. For this reason, it is advisable to choose a method of termination that allows for proof through written evidence (letter, text message, etc.).
In the event of oral or phone termination and termination through conduct, it can be unclear or disputed whether termination has actually taken place.
Reservations regarding form
Reservations or agreements regarding the form of termination can arise from:
- Individual employment contracts
- General employment conditions
- Personnel regulations
- Company rules
- Collective labour agreements
- Custom standard employment contracts
The reserved or agreed-upon form may, for example, stipulate that termination must be in writing or sent by registered mail.
If the agreed-upon form or method of delivery is not adhered to, the question arises as to whether the termination has been validly made.
To avoid uncertainties and disputes over the form or method of delivery, it is advisable for both employees and employers to comply with the agreed-upon form and method of delivery.
Before giving notice, it is important to consult the employment contract to ensure that no agreements regarding the form (or method of delivery) have been made.
Case law on form reservations
The purpose and meaning of reservations or agreements regarding the form and method of delivery of termination are determined through interpretation.
There is a legal presumption that the form reserved by the parties to a contract is a requirement for the validity of the contract (Art. 16 CO). It is debated whether this provision should also apply to unilateral declarations such as termination. According to the Swiss Federal Court, the reserved form must be adhered to when it concerns exercising rights of disposition, which is the case with termination. On the other hand, the agreed-upon form merely serves as evidence if it concerns declarations that cannot change the legal situation (BGE 128 III 212, para. 2a and b).
An agreement regarding a specific form (usually written form) is generally a requirement for validity. If the form is not complied with, the termination is not effective, and the contract is not terminated.
An agreement regarding a specific method of delivery (usually registered mail) is considered an evidentiary requirement.
To avoid discussions and uncertainties, it is advisable to comply with both the agreed-upon form and the agreed-upon method of delivery.
Reception-dependent declaration of intent
Termination is a so-called reception-dependent declaration of intent. It can only take effect if it has been received by the recipient. It is sufficient for the termination to have entered the recipient’s sphere of control and can be acknowledged by the recipient. Actual knowledge of the termination is not required.
For a termination via text message (SMS, WhatsApp, etc.) or email, it is sufficient that the message has been sent and can be accessed on the recipient’s system.
