A sensitive case lands on the desk of an HR manager at a small or medium-sized enterprise (SME). An employee is suspected of embezzling money, a colleague is threatening coworkers, or someone persistently refuses to work. The question comes up quickly: can we dismiss without notice? Dismissal without notice is the sharpest instrument in employment law, and also the riskiest. An employer who uses it wrongly often ends up paying more than if it had terminated with ordinary notice. This article shows HR departments in SMEs when dismissal without notice is permissible, how to proceed step by step and which mistakes to avoid at all costs.<\/p>\n\n\n\n
Dismissal without notice ends the employment relationship with immediate effect, without observing a notice period. The legal basis is Art. 337 OR, that is, Art. 337 of the Swiss Code of Obligations (Obligationenrecht, OR), which governs termination without notice for good cause. Both sides may terminate without notice: the employer as well as the employee.<\/p>\n\n\n\n
A so-called good cause (wichtiger Grund) is always required. This means a circumstance that, under the principle of good faith, makes it unreasonable for the terminating party to continue the employment relationship. The statute deliberately leaves this wording open. Whether good cause exists is always decided case by case.<\/p>\n\n\n\n
Distinguish this from ordinary termination. With ordinary termination, the contractual or statutory notice period runs and salary is paid until the end of it. With dismissal without notice, the relationship ends at once, which is exactly why the requirements are high.<\/p>\n\n\n\n
According to the case law of the Swiss Federal Supreme Court, only particularly serious misconduct justifies immediate termination. The breach of trust must be so grave that the employer cannot reasonably be expected even to wait out the notice period.<\/p>\n\n\n\n
In practice, the following groups of cases are mainly recognized, in each case depending on the specific circumstances:<\/p>\n\n\n\n
Not every instance of misconduct justifies dismissal without notice. For less serious breaches, the case law requires the employer to warn the employee first. The warning must make unmistakably clear that the employer will not tolerate the behavior and that dismissal without notice is threatened if it recurs.<\/p>\n\n\n\n
Repeated lateness or occasional carelessness are examples. Neither is good cause on its own. Only if the behavior continues despite a clear, documented warning can dismissal without notice come into consideration.<\/p>\n\n\n\n
For particularly serious misconduct such as theft, by contrast, no warning is needed. Here the breach of trust is so deep from the outset that immediate termination may be justified.<\/p>\n\n\n\n
The most frequent mistake in SMEs concerns timing. An employer that wants to dismiss without notice must do so promptly. The Federal Supreme Court requires that notice be given within a few working days after the employer learns of the good cause. In practice, roughly two to three working days serve as a benchmark, depending on the case and the size of the business.<\/p>\n\n\n\n
An employer that waits too long signals that continuing the employment relationship was apparently reasonable after all. Dismissal without notice is then no longer justified.<\/p>\n\n\n\n
Some additional time is allowed if the facts must first be clarified or a body must make the decision. These inquiries must nonetheless be swift and focused. Inaction or hesitation endangers the dismissal.<\/p>\n\n\n\n
If a potential case reaches you, a structured and documented approach is advisable. It keeps you in control of the process and at the same time builds the evidentiary basis in case of later court proceedings.<\/p>\n\n\n\n
As a rule, dismissal without notice is not subject to any particular form, unless the employment contract or a collective labor agreement (Gesamtarbeitsvertrag, a contract between employer and employee associations) requires writing. In practice, however, you should always terminate in writing. Only then can you later prove when notice was given and what it said.<\/p>\n\n\n\n
Under Art. 337 Abs. 1 OR (paragraph 1 of the provision on termination without notice), the terminating party must state the reasons in writing at the other side’s request. Draft the reasons carefully and concretely. Vague wording weakens your position if a dispute arises. Reasons put forward after the fact that were not yet known when notice was given generally do not count.<\/p>\n\n\n\n
If the employer dismisses without notice although there is no good cause, the dismissal is nevertheless effective. The employment relationship ends immediately. The employee can, however, claim compensation. The employee is entitled to what he would have earned had the ordinary notice period been observed. In addition, the court may award an indemnity of up to six months’ salary. Whatever the employee earned elsewhere during that time, or intentionally failed to earn, is credited against the claim. For an SME, an unjustified dismissal without notice can therefore be considerably more expensive than a proper ordinary termination. This underlines why careful assessment matters so much.<\/p>\n\n\n\n
Practice shows a clear set of typical pitfalls:<\/p>\n\n\n\n
Assess every potential case soberly. How serious is the misconduct really? Do we need a warning first? And above all, are we acting fast enough? Record the facts completely and in writing, hear the person concerned and decide promptly. An unjustified dismissal without notice can be very costly for an SME, and every case depends heavily on its circumstances. Before you decide on a dismissal, therefore, obtain qualified advice from an employment law specialist. This article provides general information on the legal position and does not replace advice on an individual case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Dismissal without notice is the sharpest and riskiest instrument in Swiss employment law. Learn how HR managers in Swiss SMEs should assess a sensitive case, which deadlines apply and which mistakes become expensive.<\/p>\n","protected":false},"author":8,"featured_media":8898,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[3,8],"tags":[],"class_list":["post-8901","post","type-post","status-publish","format-standard","has-post-thumbnail","","category-employment-law","category-sme"],"acf":[],"yoast_head":"\n