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 immediate effect.
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 relationship."
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 dismissed.
"State immunity of the embassy as an employer was not an issue."
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.
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.
