The Federal Supreme Court recently ruled that there were sufficient grounds to justify the termination of a security guard's employment due to security concerns. The security guard had worked at the nuclear power plant near Berne since 1993.

Employees working in security areas of the nuclear industry are subject to periodic security checks, which involve, among other things, financial background checks and the review of any criminal records. In one of these checks performed in 2012-2013, it was revealed that the security guard employee had received criminal fines in 2008 and 2013. The misdemeanours were not work-related but had been carried out as part of the employee's hobby of dog breeding, whereby he twice illegally took back young dogs that he had bred and sold on to owners which he later felt had failed to treat the dogs well.

The court held that on their own, the two criminal fines were not sufficient to justify the employee's dismissal. However, it also considered the results of an interview where the employee discussed problems that he had encountered with his superiors regarding specific security issues at the nuclear plant. In the interview the employee mentioned that he would consider going public about these security issues should his concerns fail to be appropriately addressed and that he might consider such as step again if the security concerns became more serious.

It was this statement in conjunction with his recent criminal records which led the court to consider the employee to be a security risk justifying termination. Although the court admitted that whistleblowing can be legal in exceptional cases, it also clarified that going public with certain confidential information should remain a last resort. The court upheld the termination, maintaining that the three incidents constituted sufficient evidence to suggest that the employee had a tendency, even a proven track record, for high-handed and illegal self-defence measures, which no longer qualified him for a security position.

For further information on this topic please contact Thomas Rihm at Thouvenin Rechtsanwälte by telephone (+41 44 421 45 45) or email (t.rihm@thouvenin.com). The Thouvenin Rechtsanwälte website can be accessed at www.thouvenin.com

 This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.