SWITZERLAND Law and Practice Contributed by: Philippe Nordmann, Marion Bähler, Christian Hagen, Samuel Lieberherr and Dario Glauser, Walder Wyss Ltd
ly) from the Labour Act’s various provisions regarding minimum rest periods (such as mandatory minimum breaks and the general prohibition of work during the night and on Sundays/public holidays). Overtime and Extra Hours Distinction between overtime and extra hours There are two main categories of hours worked in excess of the applicable usual weekly working time that need to be distinguished: • “overtime” means the hours that an employee works in excess of the (usual) weekly working time that has been contractually agreed, is customary or has been defined in an applicable collective bargaining agreement or standard employment contract; and • “extra hours” means the hours that an employee works in excess of the applicable maximum weekly working time (if any). In the context of variable working time systems (eg, flexitime systems), there may be an additional impor - tant category of hours worked in excess of the appli - cable usual weekly working time (ie, hours worked based on the employee’s “time sovereignty”, which are to be distinguished from overtime). Employee’s duty to perform overtime and extra hours While the employee is obliged to perform overtime if such overtime is required and to the extent they are able and may reasonably be expected to do so, the performance of extra hours (additionally) requires the existence of exceptional circumstances. Compensation for overtime and extra hours Pursuant to statutory law, overtime and extra hours are principally compensated by corresponding time off (only if the employee consents) or by an addition - al salary payment including a 25% surcharge (if the employee does not consent to compensation by time off). However, this statutory compensation rule is only man - datory with regard to extra hours (for some employees, only from the 60th extra hour per calendar year). With regard to mere overtime, any employee compensation
claim (ie, compensation in cash or in kind) may be excluded by a written agreement between the parties or by a provision in a collective bargaining agreement or standard employment contract. 4.4 Termination of Employment Contracts Freedom of Termination Principle Ordinary terminations of employment (ie, termina - tions observing the applicable notice period) do not require a particular lawful reason, so Switzerland may be described as an “employment at will” jurisdiction. If the other party so requests, the party giving notice must state its reasons for termination in writing. Limitations to the principle However, there are important limitations to the afore - mentioned principle of freedom of termination, as set out in the following. • Terminations must principally observe the appli - cable notice period (during which the employer remains obliged to pay the employee’s compensa - tion). • Terminations may never be issued in bad faith (so-called abusive terminations), whereas such bad faith is specified in a non-exhaustive legisla - tive enumeration of circumstances (eg, bad faith is assumed if a termination is the result of the other party asserting claims under the employment relationship in good faith). While even an abusive termination is valid, it entitles the terminated party to a penalty payment of up to six monthly salaries (provided that said party submits a written objec - tion against the termination before the expiry of the notice period and brings the claim before the competent court within 180 days of the end of the employment relationship). • Terminations with immediate effect (ie, without observing the applicable notice period or an agreed fixed term) require the existence of good cause. This is only very exceptionally assumed if the terminating party may not reasonably be expected to continue the employment until the expiry of the applicable notice period or the agreed fixed term and acts within just a few days of becoming aware of the good cause. While even terminations without good cause result in immedi -
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