SWITZERLAND Trends and Developments Contributed by: Philippe Nordmann, Irène Suter-Sieber, Jonas Knechtl and Gustaf Heintz, Walder Wyss
that all parties agree, no overriding interests exist and that specific technical conditions are being met. Lastly, the revised Swiss Civil Procedure Code has fur - ther expanded the powers of the conciliation authority. Under the revised provisions, conciliation authorities may now make decision proposals in cases where the amount in dispute does not exceed CHF10,000. Before the revision, this power had been limited to proceed - ings with amounts in dispute of up to CHF5,000. It is noteworthy that decision proposals by a conciliation authority become valid and binding decisions if none of the parties involved files a written rejection within 20 days of their issuance. Furthermore, if a party that is required to appear to a conciliation hearing fails to do so, the conciliation authority may issue said party an administrative fine of up to CHF1,000. Entitlement to Daily Sickness Allowances In a decision of 1 October 2024, the SFSC adjudi - cated the case of an employee with an annual salary of CHF565,287.85 who had been dismissed by his former employer on 22 January 2021 as per 31 July 2021. During his notice period, the employee fell sick, which extended his employment relationship until 31 January 2022. The employer had concluded a daily sickness ben - efits insurance policy stipulating a waiting period of 60 days and offering coverage of 90% of the insured salary. Once the employee fell sick, the employer informed the insurance company thereof. However, the insurance company refused to pay out daily sick - ness allowances to the employee after the waiting period of 60 days had passed on 20 August 2021, which ultimately led the employee to file a claim with the Geneva courts against the insurance company. The Geneva Social Insurance Chamber subsequently found that the insurance company was liable to the employee for daily sickness allowances on the basis of 90% of the employee’s insured salary from 20 August 2021 until 31 January 2022, while also taking into consideration the employee’s varying degrees of sickness-related inability to work. The insurance company’s appeal proved successful as the SFSC ruled to overturn the lower court’s deci - sion. The SFSC held that if an insured employee falls
ill after having been dismissed, the employee bears the burden of proof that they would have been able to work and thus been entitled to unemployment benefits if they had not fallen ill. Furthermore, the SFSC held that it cannot be assumed that the dis - missed employee would have earned their old salary unless a specific job and salary was in prospect, and that without proof of probable gainful employment, the employee’s insured loss does not consist of the insured salary but only of the lost (capped) unemploy - ment benefits to which they would have been entitled had they not fallen ill. The SFSC therefore referred the case back to the lower court for a recalculation of the – now significantly lower – daily sickness benefits. New Case Law Regarding Summary Dismissal In a recent decision rendered on 15 January 2025, the SFSC confirmed the legality of a summary dismissal of an employee due to failure to inform the employer in a timely manner about having fallen ill during the notice period. The employee who had already been ordinarily dismissed had failed twice to inform her employer of the medically determined duration of her sick leave even though the duration was known to her. In its decision, the SFSC held that Swiss law requires employees, among other things, to protect the legiti - mate interests of their employer in good faith and that this also includes a duty to provide information to the employer. Specifically, the SFSC found that employees must notify their employer of foreseeable absences as early as possible and report unforeseeable absences immediately after they occur. This duty to notify also applies to absences due to illness or accident. The SFSC further stated in its decision that the employer has a legitimate interest in finding out as quickly as possible whether and, if so, when an employee will be back at work. The SFSC therefore held that the employee should have informed the employer of her continued absence immediately after her second doc - tor’s appointment. Since the employee failed to do so, she had disregarded her duty to provide prompt, continuous and complete information to her employer. This conduct ultimately made it unacceptable for the employer to continue the employment relationship meaning that the employer had good cause to termi - nate it with immediate effect.
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