An employment agreement must define the main working conditions, amongst others the employee's job portfolio, his or her salary including any other financial incentives, the working hours, the treatment of overtime work, holidays etc. Whilst these cornerstones of an employment contract are usually paid much attention, another important element of the working relationship is quite often less considered: i.e. the place (or places) where an employee shall perform his or her work.
Not considering the employee's actual work place and any potential work places in the future may turn out to be problematic when a dispute arises, since the place of work at the time of a dispute quite often determines the judicial forum, and according to international private laws of Switzerland and of most other European countries, the place of work determines the applicable employment laws as well, even if the parties to a work contract have made a choice in favor of particular employment laws.
"One approach to prevent difficulties in renegotiating a work contract is to allow the employer in advance to change or extend the employee's work place."
To the extent that the work contract parties have agreed on one (or more) places of work, a substantial change in such work place(s) requires a change and/or amendment of the work contract, whilst minor changes to the work place(s) remain subject to the employer's imminent instructional rights.
If the work contract parties cannot agree on a such change in the work, the employer must terminate the employment contract by means of a termination notice combined with an offer to conclude a new employment contract with the modified work of place. If the employee accepts such contract offer, the employment contract continues with the changed place of work. Otherwise, the employment relationship is terminated.
"The employer's instructional rights may never unreasonably interfere with the employee's family and other personal circumstances."
One approach to prevent difficulties in renegotiating a "work contract is to allow the employer in advance to change or extend the employee's work place(s). Such a dislocation clause entitling the employer to transfer the employee to another place of employment by exercising his/her instructional rights as an employer are, however, limited as Swiss laws generally prohibit excessive contractual commitments violating one's personality.
The Swiss Supreme Court saw such an excessive commitment in a case where an employee agreed to a fixed place of work but at the same time allowed the employer to move him or her to any of its national branches what required the employee to bear higher commuting costs including longer travel times without compensation. In other words, the employer's instructional rights may never unreasonably interfere with the employee's family and other personal circumstances. Other considerations may include the operational necessity and urgency on the employer's side including the duration of the dislocation time as a whole, but also the length and duration of the work journey before and after the transfer, the degree of employment (full time vs. part time) and the working hours required thereunder.
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.