When Can I Terminate an Employee Without Notice?

Definition of Terms

n the case of termination without notice, the employment relationship ends immediately, without regard to the originally agreed notice period in the contract. If an employee is terminated without notice, they must vacate their workplace on the same day. In Switzerland, termination without notice is possible from both the employer's and the employee's side. Termination without notice is also called extraordinary termination.

Form of Termination: Written or Oral?

Termination without notice can be given orally. However, it is advisable to obtain written confirmation of receipt. The other party merely confirms receipt of the termination with their signature. This confirmation is independent of whether the affected party accepts the termination or not. The law refers to this as a unilateral declaration of intent.

Once you, as the employer, have the employee's signature, they must leave the company on the same day under the deadline you set. In Switzerland, a written justification for termination is generally only required if requested by the other party.

Conditions for Termination without Notice

Now we come to the most interesting part and the question of when you are actually allowed to terminate an employee without notice. Based on the interpretation of Art. 337 CO, termination without notice requires a significant reason that makes further cooperation untenable. Otherwise, termination without notice is not justified.

Unfortunately, the term "significant reason" is flexible. Cases that end up in court are usually examined individually. Nevertheless, we would like to provide you with some examples for orientation. These can be roughly divided into three categories.

1. Serious Misconduct

The first category includes serious misconduct caused or committed by the employee in the workplace. Examples include:

• Criminal Offenses (e.g., Theft)
• Violent Assaults
• Sexual Harassment
• Insults (Excluding Trivial Cases)
• Parallel Employment in a Competing Company
• Refusal to Work Even After Multiple Discussions and Warnings
• Misuse of Trade Secrets
• Acceptance of Bribes
• Fraud

2. Less Serious Misconduct

Examples of less serious misconduct in the workplace include:

• Failure to appear at work (without good reason)
• Repeated refusal to work
• Violations of contractual terms (e.g., private internet use, violations of data protection aspects)

3. Special Case: Inadequate Work Performance

If the execution or results of your employee's work are poor, you cannot simply terminate them without notice according to the law. There are only very few individual exceptions where the court considers termination without notice justified. In many cases, you should prefer regular termination over termination without notice.

It is also important here that the employee actually has the opportunity to perform their duties properly. You can find more information on this under the "unavoidable prevention" section in Art. 337 CO.

Termination Date

The termination date of a termination without notice varies depending on the type of misconduct.

For Serious Misconduct

As an employer, you should react promptly in serious cases. Otherwise, the right to terminate without notice could become void. There is no classical guideline for this. In practice, most courts consider about 1-2 days appropriate for smaller companies and several days for larger companies. Overall, it will not be negatively viewed if you first internally review and confirm the case.

Especially in larger companies where other bodies such as department heads or employee representatives must be involved first, the court usually gives credit for professional procedures. However, it is important that you initiate all necessary steps immediately to investigate the matter. The basic requirement for termination is, of course, that the misconduct is true and not based solely on suspicion.

For Less Serious Misconduct

Less serious cases always require a prior warning before termination without notice is justified. Keep this in mind to avoid problems later on.

Employee's Objection

If your employee believes that the termination without notice is not justified, they can object. Whether the employee seeks a discussion with you beforehand or goes directly to court is generally up to them according to the law.

Consequences of Termination without Notice

Justified Termination without Notice

With a justified termination without notice according to Art. 337b CO, the employment relationship ends immediately. In this case, the employee has no legal claims to further payment of their salary. Furthermore, if you can prove any damages caused by your employee's misconduct, you may even sue them for damages.

Unjustified Termination without Notice

An unjustified termination without notice occurs if the suspicion of the employee's misconduct is not confirmed after their objection or if the court decides that the termination without notice is unjustified. In this case, the employment relationship is also terminated immediately, but the employee has rights, the exercise of which can cost you significantly.

First, you must continue to pay the employee their salary, including any relevant expense allowances, until the end of the regular notice period. Depending on the contract, there may also be a 13th-month salary or a sales bonus. In addition, you may have to pay compensation to the employee. This can amount to up to 6 full months' salary. You can find more detailed information and calculation bases in Art. 337c para. 2 and 3 CO.

Additional Information on Termination without Notice by the Employee

Can my employee also terminate without notice and under what conditions?

Yes. The conditions are largely the same as for termination by the employer: The reasons must be true, and further employment must no longer be reasonable in good faith.

For what reasons can an employee terminate without notice?

Examples of termination without notice by an employee include when the salary is not paid for a long period, the employer grossly negligently violates health protection, or serious offenses such as bullying, sexual harassment, or other assaults occur.

What consequences do I face as an employer in the event of justified termination without notice by my employee?

Most likely, you will have to make salary replacement payments and, under certain circumstances, compensation. Compensation, as with termination by the employer, is generally not due. Serious offenses can also be prosecuted criminally upon appropriate notification.

Support in Termination without Notice Procedures

f there are justified reasons that lead you to consider terminating an employee without notice, legal assistance is highly recommended. A specialist in labor law can provide you with comprehensive advice and legal protection that you need in this case. GetYourLawyer assists you in finding the right lawyer. Simply submit your request online and find a labor law attorney who fits your specific case.