SWITZERLAND Trends and Developments Contributed by: Philippe Nordmann, Irène Suter-Sieber, Jonas Knechtl and Gustaf Heintz, Walder Wyss
Failure to disclose information was also the topic of another justified summary dismissal case before the Swiss courts, concerning an employee who had been employed by the company as HR operations manager since 2011 and reported directly to the HR director. Between 2011 and 2017, the employment relationship was constructive, and in 2016, the employee even received an award as “team player of the year”. In the same year, the HR director granted the employee and other team members access to his Outlook calendar. For reasons that remain unclear, however, the employ - ee also gained access to the HR director’s Outlook inbox, something that had not been intended by the HR director. The employee then proceeded to read the HR director’s business and private emails. At the turn of the year 2017/2018, the company decided to terminate the employee’s employment contract at the end of June 2018 as the employee’s relationship with his colleagues had deteriorated. As part of a routine check on (soon to be) dismissed employees, the CISO of the company reviewed the employee’s IT activi - ties. There, it was discovered that the employee had transferred a large amount of HR data to his private network. The HR director was informed and deter - mined that the employee could only have accessed the transferred HR data through access to his inbox. During a subsequent meeting between the employee and the HR director, the employee admitted that he was aware of his imminent dismissal and that he had had access to the HR director’s email inbox. The com - pany proceeded to terminate the employee’s employ - ment with immediate effect a few days later.
The resulting lawsuit by the employee for unjustified summary dismissal was ultimately dismissed by the court of first instance and the Geneva Cantonal Court. In its decision, the Geneva Cantonal Court held that even if it could not be proven beyond doubt that the employee had read e-mails of private nature, the employee’s behaviour constituted a serious violation of privacy. In the court’s opinion, the employee had been obliged to inform the HR director that he had access to the HR director’s e-mail inbox in accord - ance with his duty of loyalty. The court held that the employee did not act in accordance with his duties and even tried to conceal his access and behaviour by marking e-mails as “unread” after he had read them.
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