Switzerland: No Unfair Dismissal Of Airplane Pilot Who Reported Sick Whilst Travelling To Latin America For A Holiday

Last Updated: 12 December 2017
Article by Thomas Rihm

A pilot had cheated on his absence from the work place with a false medical certificate whilst he and his fiancé travelled to the baptism of a nephew to South America. The Labor Court of Bülach in Zürich confirmed the pilote's immediate termination which court decision was recently approved by the Zürich Supreme Court.

Several times before, the pilot and his fiancé, who worked for the same airline company as a flight attendant, had disappointed their relatives in faraway South America because by turning down invitations to family gatherings. When they were invited to the baptism of the future wife's nephew in summer of 2014, the couple wanted to live up to their relatives' expectations. As a result, the trip to the baptism ceremony cost both employees their jobs.

The invitation to the family celebration had arrived shortly. The pilot therefore assumed that he would not be able to submit a vacation request in time. Nevertheless, the couple booked two stand-by tickets, allegedly in the hope that both could have off duty in the days around the baptism.

This hope was not fulfilled. Nevertheless, the couple did not appear in the workplace, because the pilot, who suffered from gastroenteritis the two previous weeks, continued his absence from work and reported a relapse before the family celebration. His fiancé told her supervisor that she was also ill.

Instead of resting and healing their suffering, they flew to South America. Three days after the family celebration, they returned to work in Switzerland. But the employer had become suspicious and asked the pilot and his fiancée for a review by a medical examiner. There the pilot concealed that he had not spent the period of convalescence at home. Also in a subsequently opened disciplinary proceedings, the pilot stuck to this story.

Only in a personal conversation with his supervisor and a representative of the HR department, the pilot finally confessed that the couple had flown to South America. They felt obliged to their relatives and started their journey despite their feelings of guilty. The employer dismissed him with immediate effect with a three-month sick pay. The pilot's fiancé terminated in a similar way.

Following a written objection by the pilot, the company upheld the termination. The pilot then called the Labor Court of the District Court of Bülach and claimed an abusive dismissal. He furthermore alleged that his employer did not comply with a three-stage procedure stipulated in the collective bargaining agreement by issuing a formal warning letter followed by a technical dismissal warning Moreover, he claimed that it was up to the employer to prove that the illness had been faked and that a serious breach of duty had been committed.

Neither the District Court of Bülach nor the Zurich Supreme Court did admit this defense. The Zurich Supreme Court considered the absence of gastrointestinal disease as proven. In addition, it argued that the collective bargaining agreement allows the termination w/o notice in the event of gross breach of contract, namely, if the terminating party can no longer reasonably be expected to continue the employment relationship in good faith.

"Especially a pilot must enjoy absolute trust in light of the pilot's utterly responsible work and the ubiquitous need for strong confidence which is even stronger than in other occupations, so both courts. The multiple lies and untrue factual representations were not only morally disturbing, but also seriously violate the contractual obligation of fiduciary duty, according to both courts.

The plaintiff also failed to convince the Zürich Supreme Court on his alternative request to pay him an appropriate compensation of at least CHF 100,000 for abusive dismissal. The pilot has now called upon Swiss Federal Supreme Court for an additional review of his case.

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.

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