Most Read Contributor in Switzerland, February 2017
The following facts were presented to the highest court in
Switzerland: a staff member of a foreign embassy in Geneva had
approached two female passport seekers by calling them privately
and outside of regular office hours and inviting them - amongst
others - for dinner. The second indecent behaviour took place on
October 2, 2012, whereby the staff member was called into the
foreign consul's offices on October 15, 2012, in order to
confront him with the alleged incidents.
"The Swiss Supreme Court ruled that termination with
and w/o cause are mutually exclusive."
Only 3,5 months later, on January 31, 2013, the staff member was
notified that a disciplinary investigation starts on the same day,
whereby a garden leave w/o any salary payments was ordered for the
upcoming investigation period which ended on September 13, 2013. A
few days later, i.e., on September 17, 2013, as a result of the
disciplinary investigation, the staff member was terminated with
The Swiss Supreme Court held that Swiss employment laws provide
only for two types of employment terminations, i.e. the ordinary
termination by observing the mandatory and/or contractual
termination periods under full salary payments or through an
extraordinary termination with immediate effect if certain
so-called important reasons are given which justify an immediate
termination w/o observing the ordinary ternination periods. The
highest court in Switzerland then also ruled that these two
termination regimes are mutually exclusive. The employer confronted
with a more or less massive violation of employee's duties must
therefore make a decision whether to issue an ordinary or
extraordinary termination which decision is then binding.
The employer argued that its employment guidelines required
a disciplinary investigation before terminating the employment
The foreign government had argued that there were employment
guidelines in place that required the foreign embassy to conduct a
disciplinary investigation before termination of an employment
relationship or take any other action - this in order to protect
employees. The Swiss Supreme Court had ruled in previous cases that
non-observance of internal investigations required by respective
employment guidelines may lead to an abusive dismissal resulting in
damage claims of up to six months. However, these court precedents
were rendered in the context of ordinary employment terminations
whilst in the present case the employer had chosen some
"middle path" which the Swiss Supreme Court
"State immunity of the embassy as an employer was not
The Swiss Supreme Court did not have to address the question as
to whether the foreign government enjoyed the privilege of
diplomatic immunity before the Geneva employment courts as this
defense was not raised, though the staff member had obviously
executed public functions during his tenure.
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