Update: 09.11.2016

When will Switzerland increase protection against abusive dismissal?

Between 30 May and 11 June 2016 the 105th ILO Conference took place in Geneva. Once again the ILO Committee of Experts reprimanded Switzerland for its insufficient protection against the dismissal of employees.

Switzerland has been in a political deadlock over the protection against abusive dismissal for many years, especially over anti-union dismissals. Other countries have put international pressure on Switzerland to increase legal specifications to protect trade union member from dismissal. The Federal Council prevented a revision of such legislation in 2010 because it was completely rejected during the consultation procedure.

In autumn 2012, the Confederation of Swiss Trade Unions reactivated a lawsuit it had filed with the International Labour Organisation (ILO) in 2003. That same year, the Federal Council launched a study (published in September 2015) that included practical suggestions to resolve the issue.

National trade unions and the International Trade Union Confederation (ITUC) provided numerous examples that their calls for better protection against abusive dismissal are well-founded. Employees that advocate better working conditions in Switzerland and who are prepared to strike face having their contract terminated. Switzerland is alone in its insufficient protection against abusive dismissal, since the workforces in surrounding countries are more extensively covered.

Switzerland reprimanded again

During its conference from 30 May and 11 June 2016, the ILO Committee of Experts reprimanded Switzerland for the third time over this issue.

ITUC issued a notice on 1 September 2015, to the ILO about repeated anti-union dismissals in the Swiss press, the publishing industry, and the healthcare industry as well as citing the intimidation of trade union members working at the Geneva airport. The ILO Committee of Experts issued a report criticising the ongoing violation of ILO Convention No. 98, since Switzerland’s current legal standards still allow for anti-union dismissals. The penalties for unlawful dismissal are still too mild. 

In 2003, the Confederation of Swiss Trade Unions (SGB) filed a lawsuit with the ILO against the Swiss Confederation. In 2004 and 2006 the ILO Committee of Experts published two interim reports that granted rights to the SGB.

SGB calls for action from politicans

Tripartite talks among the President of the Swiss Confederation Johann Schneider-Ammann, employers’ representatives and employees’ representatives took place during the Conference. The SGB reminded participants that Switzerland lacks efficient protection against anti-union dismissals. The SGB issued a position paper that stated that “in Switzerland, a serious and integrated commitment to the ILO […] must not solely be based on ratifying conventions and financing projects. The state’s commitments must become national law, to improve the protection against anti-union dismissals in the Code of Obligations.”

Case study: termination without notice during a strike

The strike at a Spar in Baden–Dättwil is a clear example for this unsolved problem. The Employees of a Spar filling station in the canton of Aargau went on strike in June 2013 to fight for better pay and to protest intolerable working conditions. According to the trade union Unia, Spar management “only began talks after seven days of striking and then left halfway through discussions without giving any reasons. Spar did not respond to any offers from employees or Unia. After eleven days of striking, Spar fired eleven employees instead of resuming negotiations.”

Freedom of association and trade union freedom

In such situations, adequate protection against unfair dismissal would facilitate discussions between employers and employees so they could negotiate on equal terms. If protection against dismissal is insufficient, it indirectly circumvents the right of association which, according to Art. 11 of the ECHR includes the right to engage in trade union activity (freedom to form a coalition and freedom of association).

Freedom of association and trade union freedom are also both included in the ILO Conventions No. 87 (Convention concerning Freedom of Association and Protection of the Right to Organise) and No. 98 (Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively). Convention No.87 was ratified by Switzerland in 1975, and Convention No. 98 was ratified in 1999. Although these conventions are not directly applicable under Swiss law, Switzerland is obliged to include their provisions in national law and to comply with them. Switzerland’s current legal climate and case law are insufficient to guarantee these freedoms.

Older complaints with the ILO

The right to form professional associations guaranteed in the Constitution (Art. 28 of the Federal Constitution) as well as numerous international legal sources, in particular ILO Convention No. 98, allow all employees to form unions to protect their rights in the workplace. However, many active trade unionists risk losing their job because trade unionists cannot go to court for re-employment. They can only claim payment for a maximum of six monthly salaries.

To comply with ILO Convention No. 98, employers who unlawfully fire employees must face more than financial consequences. In addition, legislators should introduce explicit provisions against abusive dismissal that include dissuasive penalties if an employee is fired for trade union activity. It is widely regarded as unacceptable for employees to be fired for being active in a trade union. Therefore, legal measures should be implemented that allow employees to be reinstated should they be fired for union activities.

The ILO Committee of Experts called on the Swiss Government to re-examine the dismissal of employees for anti-union reasons and to take steps to guarantee employee protection in cooperation with its social partners.

Complaint reactivated in 2012

The SGB suspended the lawsuit in 2009 to reach a solution nationwide. Since no solution has been found three years later, the SGB reactivated its complaint with the ILO. As proof of the existing problems, the trade union launched several new cases of unlawful dismissal as a subject of discussion when reactivating the complaint. SGB President Paul Rechsteiner stated on the union website that “in the long run, internationally connected Swiss authorities, Swiss employers’ and economic associations cannot be indifferent towards the ILO’s view that Switzerland is infringing on the fundamental right of freedom of association.”

Refusal during the consultation procedure

The Federal Council was not inactive between 2004 and 2012. In 2010, it released a draft of legal amendments as part of the consultation procedure which included a partial revision to the Code of Obligations (CO). One of the main aims was to extend the maximum compensation payment after an abusive dismissal from six to twelve months. It also planned to include stronger protection for members of trade unions. The aim was to prevent employers from dismissing workers’ representatives for economic reasons, a practice that is currently still allowed by Federal Supreme Court jurisdiction.

During the consultation procedure, the trade unions deemed the Federal Council’s suggestions insufficient and rejected them. They stated that large companies in particular could pay monthly salaries from the day’s takings. The Social Democratic Party, the Green Party, and unions believe that fired employees and other victims of “anti-union” dismissals must be rehired if they wish to be.

The employers’ side also fought hard against the Federal Council’s draft. Middle and right-wing parties (FDP, CVP and SVP) and the Confederation of Swiss Employers (SAGV) were fundamentally opposed to it. They reasoned that any improvement to employees’ rights is a fundamental attack on Switzerland as a location for business. As the SAGV put it, “the double function of compensation as reparation and sanction is fulfilled by a maximum of six months’ pay.” The Federal Council therefore suspended its CO revision project.

Study on behalf of the Confederation

In 2012, the Federal Council asked the Federal Department of Justice and Police (FDJP) and the Federal Department of Economic Affairs (FDEA) to study the fundamentals and framework conditions of the protection against dismissal. The study was to serve as a basis for a solution within the tripartite Federal Commission for ILO Affairs that would be supported by all social partners. The research centre for labour relations at Neuchâtel University (CERT) was tasked with conducting the study. The aim was to find out how well Switzerland lives up to international obligations on protection against dismissal and to find out how much employee protection should be increased.

The study was published on 15 August 2015 and underscores the problematic legal situation in Switzerland. On the one hand, certain fundamental rights are theoretically guaranteed by international agreements but lack sufficient protection in practice. On the other hand, the study concluded that private labour law in Switzerland is marked by liberal principles. Protection against dismissal is always opposed to employers’ freedom to fire people. Considering this political starting point, the authors of the study offered three pragmatic solutions.

Standardised protection

The solution revolves around the standardising protection. The current Code of Obligation differentiates between employee representatives and elected trade union representatives (cf. CO Art. 336, Para.2, Lit. a and b). “Simple” trade unionists are not as well protected if they are fired than elected trade union representatives. In the latter case, the burden of proof is automatically reversed and the employer must prove the dismissal was not unjustified, e.g. for economic reasons. “Simple” trade unionists have to prove they were fired because of their involvement membership in trade union and that the dismissal was therefore unjust. The study concluded that there is no valid reason for this distinction and that “simple” trade unionists should also benefit from a reversal of the burden of proof.

Expansion of the protection against dismissal

The study also looked at expanding protection against dismissal. According to the study, employee protection against dismissal in nearby Sweden, Slovakia and the UK is more extensive than in Switzerland. In these countries, proceedings must be based on specific or qualified reasons. There is often a court case before the employee is fired, and the employee may challenge the dismissal and be re-employed or the employer may have to give the employee twelve months’ pay or more.

According to the Swiss Federal Supreme Court, the employer does not need more than economic reasons to fire someone. The persons responsible for the study recommended that “elected employee representatives may only be legally fired for reasons based on the employee’s person.” Furthermore, businesses could also be categorized based on size, since larger companies will not be deterred from abusive dismissals by the cost of six months’ pay.

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