Jurilo by lawise.ai:
An abusive dismissal occurs in Switzerland when an employment relationship is terminated for reasons that violate good faith. While the dismissal remains valid, it may trigger a compensation obligation under Art. 336 CO.
WHAT IS AN ABUSIVE DISMISSAL IN SWITZERLAND?
A dismissal is abusive when it occurs for reasons that violate good faith – meaning it is not objectively justified or is discriminatory. While it remains valid, it can lead to a compensation obligation.
An abusive dismissal occurs particularly when it is based on irrelevant, discriminatory, or personally motivated reasons.
LEGAL BASIS: ART. 336 CO
The legal basis for abusive dismissal is found in the following provisions of the Code of Obligations (CO):
Art. 336 CO
Art. 336a CO
Art. 336b CO
TYPICAL CASES OF ABUSIVE DISMISSAL
- A dismissal due to illness must be distinguished from dismissal during illness (protection period) under Art. 336c CO
- Dismissal following a conflict, without objective basis
- Dismissal because the employee asserts rights (e.g., back pay)
- Dismissal for personal reasons unrelated to the employment relationship (e.g., religion, political opinion)
WHEN IS A DISMISSAL NOT ABUSIVE DESPITE A CONFLICT?
If the conflict significantly impairs cooperation in the workplace and the employer can prove this, a dismissal is permissible – even if it occurs after a dispute.
WHAT RIGHTS DO EMPLOYEES HAVE IN CASE OF ABUSIVE DISMISSAL?
Continued employment cannot be demanded – the dismissal remains valid.
- Entitlement to compensation (up to 6 months' salary)
- Possibility to object to the dismissal
- Right to judicial clarification and gathering of evidence
Even with a formally correct dismissal, a violation of Art. 336 CO can lead to a compensation obligation.
COMPENSATION FOR ABUSIVE DISMISSAL: AMOUNT & CALCULATION
- Maximum 6 months' salary according to Art. 336a CO
- The court decides at its discretion, considering all circumstances
- Relevant factors:
- Severity of the employer's misconduct
- Duration of the employment relationship
- Age, social situation, reintegration prospects
- Economic situation of the employer
DEADLINES AND PROCEDURE: WHAT AFFECTED PARTIES MUST OBSERVE
- Objection must be made in writing – no later than the end of the notice period (Art. 336b CO)
- If no agreement is reached, a lawsuit must be filed within 180 days after the end of the employment relationship – otherwise the claim is forfeited
EMPLOYER PERSPECTIVE: HOW HR AVOIDS ABUSIVE DISMISSALS
- Document reasons for dismissal
- Resolve conflicts early through communication
- No dismissal based on emotional or personal motives
- When in doubt: seek legal advice
CONCLUSION: WHEN IS IT WORTH REVIEWING A DISMISSAL?
Whenever:
- the dismissal occurs unexpectedly or without justification
- a conflict, illness, or assertion of rights preceded it
- there is suspicion that personal characteristics (e.g., age, origin) played a role
👉 Unsure whether your dismissal is abusive?
Jurilo reviews dismissals under Swiss employment law – structured and legally sound.
FAQ ON ABUSIVE DISMISSAL
When is a dismissal considered abusive?
A dismissal is considered abusive when it occurs for a legally impermissible reason that violates the principle of good faith. The relevant cases are regulated in Art. 336 CO.
Is an abusive dismissal automatically invalid?
No, it is valid – but the employer owes compensation.
How much is the compensation?
Up to 6 months' salary – the court decides on a case-by-case basis.
What is the difference from the protection period during illness?
The protection period renders a dismissal void; abuse only makes it subject to compensation.
Do I have to challenge the dismissal immediately?
Yes, no later than the end of the notice period – in writing.
Can I also claim compensation for fixed-term contracts?
Yes, abusive dismissal is also possible there and subject to compensation.
Does summary dismissal also count as abusive?
Yes, summary dismissal can also be abusive – in addition to a possible unjustified summary dismissal.
Who must prove that the dismissal was abusive?
The employee must credibly demonstrate the abusive reason – e.g., through documents or witnesses.
Can I receive unemployment benefits despite abusive dismissal?
Yes, but in case of self-inflicted dismissal or summary dismissal without cause, a waiting period may apply.
Does the reason for dismissal have to be stated in the termination letter?
No, but upon request, the employer must communicate the reason in writing (Art. 335 para. 2 CO).
Can I challenge a dismissal due to pregnancy?
Yes, if it occurs during the protection period, it is void – additionally, it may be abusive.
Sources:
