Protection against dismissal - notice period
An employer's notice to terminate employment is ineffective if it is given during a time (military service, illness or accident, pregnancy etc) when the loss of employment may be particularly critical for the employee ('improper time'). If notice is given but has not yet expired before the commencement of this improper time for the employee, it is suspended and continues running at the end of that time. The Federal Supreme Court has now confirmed that the beginning of the notice period is calculated retrospectively from the date of termination of the employment contract (Decision 4A_47/2008).
The question of how to calculate the beginning of the notice period comes up when notice is given well before that provided for by law or the employment contract. In the above Federal Supreme Court case, an employer terminated an employment relationship with five months' notice although the contractual notice period was three months. Less than one month before the termination of employment the employee learned about her pregnancy and immediately informed the employer. The employee claimed that the notice period had not expired, that the expiry of the notice period was suspended and that her employment continued at the end of the improper time. The Court had to decide whether there was protection during the first three months following the notification of termination or during the last three months before the actual termination of employment.
Since 1989 the Federal Supreme Court has considered the beginning of the notice period as per Article 336c paragraph 2 CO to be calculated retrospectively from the date of termination of the employment contract. The court has argued that the purpose of Article 336c paragraph 2 CO was to ensure that the employee is given the full notice period allowing him or her to look for new employment despite a temporary inability to work. If it is towards the end of his or her employment relationship, then he or she should not be prevented from job-seeking, particularly in industries in which employment is being offered on short lead times. The aim of Article 336c paragraph 2 CO may only be realised if employees can look for new employment during the final phase of the previous employment relationship.
The Federal Supreme Court has consistently confirmed the above approach in case law with one exception in 2005, where the Federal Court ruled that protection against dismissal should start on the date of notification of termination. However, the above mentioned decision has now clarified and confirmed that previous case law still applies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
