SWITZERLAND Law and Practice Contributed by: Philippe Nordmann, Marion Bähler, Dario Glauser, Christian Hagen and Samuel Lieberherr, Walder Wyss Ltd
or her potential claim to an additional penalty payment in view of an abusive termination. Non- compliance with the “actual settlement” require - ment leads to the entire termination agreement being declared null and void. Collective Redundancies Procedural rules to be followed The termination of a certain minimum number of employees (ten at the very least) within 30 days, and for reasons not pertaining personally to the affected employees (ie, collective redundancies), is subject to specific procedural requirements. Most importantly: • an employer may not decide to carry out col - lective redundancies before having informed the works council or (in the absence of such a works council) the employees in writ - ing (including a copy sent to the cantonal employment office) and having consulted with them; • in connection with such consultation, the employer must at least provide the works council or the employees the opportunity to formulate (non-binding) proposals on how to avoid redundancies, limit their number and/ or mitigate their consequences within a set deadline of (in standard cases) approximately two weeks (otherwise, any respective termi - nation would qualify as abusive and entitle each affected employee to a penalty claim of up to two monthly salaries); • the employer must notify the cantonal employment office about the results of the consultation and provide it with further appro - priate information in writing (including a copy sent to the works council or the employees); and • no individual employment relationship even - tually terminated in the course of collective redundancies may end until at least 30 days
after such notification of the cantonal employ - ment office. Employer’s duty to issue a social plan Only employers normally employing at least 250 employees and intending to make at least 30 employees redundant within 30 days for rea - sons not pertaining personally to the affected employees are obliged to negotiate a social plan (ie, an agreement setting out measures to avoid redundancies, to reduce their number and to mitigate their consequences) with the works council or (in the absence of such a works coun - cil) the employees. If the employer fails to reach an agreement with the works council or the employees, the social plan will be issued by an arbitral tribunal. 4.5 Employee Representations Optional Constitution of a Works Council According to the Federal Participation Act, employees of a Swiss employer with a head count of at least 50 are entitled (but not obliged) to constitute a works council. At the request of 20% of the employees (or at the request of 100 employees of an employer with a head count of more than 500), an anonymous vote must be held to determine whether the majority of the employees casting a vote are in favour of the suggested constitution of a works council. Participation Rights According to the Federal Participation Act, the management must provide the works council with all the information necessary to carry out its tasks properly (at least once a year). In addition, the works council has special participation rights (such as specific information rights, consultation rights or even a right of co-decision) in connec - tion with questions relating to occupational safe - ty and employee protection, transfers of under - takings, collective redundancies and selected
802 CHAMBERS.COM
Powered by FlippingBook