Dismissal when you turn 50: How to defend yourself against unfair dismissal?

In principle, you can terminate both. Since employees are not very protected in Switzerland, freedom of termination is very important. The employer may terminate the employment contract at any time; There is no need for an important reason.

Compensation is possible for a maximum of six months

However, in exceptional cases, termination is invalid. For example, if employees get sick or have an accident. Afterwards, there is a maximum blocking period of 180 days, depending on your employment period, and you cannot terminate during this period.

Another exceptional case is if the termination is unfair. This is especially true after many years of service and when employees are approaching retirement. Those who are laid off can then claim compensation; up to six months’ salary.

The indifferent heating engineer is neither ill nor has had an accident. So he can’t do anything about the termination. So will he receive compensation for the abuse? Yes, the Federal Court ruled. Despite its long service, the company did not seek a more “socially acceptable” solution. And there was no operational necessity for termination. The heating engineer received a maximum salary of six months.

Communication with bosses is very important

The deputy director was less lucky. He was still sick, but his isolation period had already expired. Therefore, the termination is valid. The Federal Court ruled that this was not exploitative either. Because the employee did not tell the boss whether and when he would return to work.

It is impossible to predict when the court will classify the termination as unfair. All the details of the individual case are important; The court must consider the interests of both parties.

Moreover, there is no clear age limit neither in the law nor in the case law. Therefore, it is not possible to say at what point employees are considered “old”. The same applies to the question of when to consider a company’s service long-term.

But there are a few clues. As a rule, it is abusive for the employer to terminate the contract solely due to age. However, there is an exception here: Once you reach retirement age, the termination can no longer be unfair. So it was legal to fire a 70-year-old part-time specialist teacher because of his age. The Federal Court also ruled that it was obvious that he should be replaced by a younger lecturer.

It is bad faith to terminate the contract shortly before the severance gift claim arises, just to prevent this claim.

However, the situation is different if the older employee can no longer perform his duties or has lost contact professionally or technically. Therefore, it was not bad behavior to terminate a 57-year-old offset press after more than 33 years of service. Because he could no longer keep up with the technical demands of his job.

Employers often have an increased duty of care to long-term, older employees. For example, the heating engineer’s boss did not notice this. Additionally, superiors should be as polite as possible when dismissing someone.

Some judges in the Federal Court have gone further, holding that employers have a duty to inform affected people in a timely manner, listen to them before dismissal, seek possible alternatives or give them a last chance to remedy their situation. behavioral and performance deficiencies.

Employer should have given one last chance

The company’s firing of a 59-year-old key account manager was therefore abusive. After 35 years with the company, he was no longer doing as much work. The Federal Court ruled as follows: The employer should have first signaled that he wanted to terminate his employment and given one last chance.

However, in general, there is no such obligation. A company did not need to consult the 60-year-old chief executive, who was also a board member, or seek alternative solutions. Although it already has 37 years of service. The Federal Court justified this by the man’s special position.

In case of going to court, employees will have to prove that the termination was unfair. This is an obstacle. If there is another reason for termination besides the reason for termination, the employer must prove that the termination will be made even if there is no reason for termination.

As a result, labor law proceedings are free of charge up to the disputed value of 30,000 francs. It is better to seek legal advice before starting; because the process also carries risks.