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I had my last day of work two weeks ago. Yesterday I realised that an error was made when calculating my holiday allowance and that I still had three days' holiday left. On my last day at work, I had to sign a final statement in which I accept the balance of all holiday entitlements. Can I now claim my holiday retroactively?
In order to protect employees, CO 341 para. 1 stipulates that for the duration of the employment relationship and one month after its termination, employees do not have to waive claims arising from mandatory provisions of the law. This takes account of the fact that employees are in a relationship of dependency and are often the weaker link in economic matters. The cancellation would be valid if the balance confirmation had been signed more than one month after termination of the employment relationship.
For more than seven years now, I have been regularly cleaning the premises of an architectural firm. Now I have fallen ill with a serious illness and the employer is refusing to pay me any salary on the grounds that, according to my employment contract, health insur-ance is the responsibility of the employee. I am not allowed to go back to work for another two months. I will therefore have to accept a loss of salary of three months. Is this correct?
I can reassure you that you are entitled to your salary in every case. If employees are prevented from performing their work for reasons relating to the individual, such as illness, accident, fulfilment of legal obligations or exercising a public office, through no fault of their own, the employer must pay them the salary due for a limited period, together with appropriate com-pensation for the lost salary in kind, provided the employment relationship has lasted more than three months (or has been entered into for more than three months). Using the Zurich scale, you are entitled to thirteen weeks' continued payment of salary. This means that the employer owes you the full three months' salary at 80% of the gross salary.
I will be starting a new job next month. The new em-ployment contract states that only those employees who are in a permanent position at the end of the year are entitled to a bonus. Is this permitted?
The bonus is a special payment to which an individual is only entitled if specifically agreed (Art. 322d CO). In this case, the bonus is intended as an encouragement for future work and, as agreed, is only paid to employees who are in a permanent position. There is no reason to object to this.
The bonus is generally voluntary unless it has been agreed (e.g. as a 13th month's salary). The agreement can also be concluded tacitly. According to the practice of individual labour courts, this is the case if payment has been made unconditionally for three consecutive years. If the amount of the bonus varies from year to year, it can be concluded from this that the employer reserves the right to pay a bonus and wishes to make it dependent on the business results or the employee's performance.
If a bonus has been explicitly or silently agreed, it is part of the salary and, in the absence of an agreement to the contrary, is to be paid pro pro rata temporis if the employment relationship is terminated before the payment date.
During my time in the military I received notice of dismissal, after which I was at home for three weeks due to an accident. Is this dismissal legally valid?
The dismissal is null and void as it was made at an inappropriate time. Once the probationary period has expired, the employer may not dismiss the employee:
- During the period of mandatory Swiss military service, civil defence service, women's military service or Red Cross service. If the service lasts more than eleven days, for four weeks before and after. (OR 336c para. 1 lit. a)
- While employees are unable to work in whole or in part due to illness or accident through no fault of their own. . in the first year of service, the employee may not be dismissed for 30 days, from the second to fifth year of service for 90 days and from the sixth year of ser-vice for 180 days of incapacity for work. (OR 336c lit. b)
- During the entire pregnancy and in the 16 weeks after the employee gives birth (OR 336c para. 1. lit. c)
