A staff member of a foreign embassy in Geneva approached two female passport seekers by calling them privately outside regular office hours and inviting them for dinner. On October 2 2012 the staff member was invited to attend the foreign consul's offices on October 15 2012 in order to be confronted with the alleged incidents.

The Supreme Court held that Swiss employment laws provide for only two types of employment termination:

  • ordinary termination, by observing the mandatory or contractual termination periods under full salary payments; and
  • extraordinary termination, with immediate effect if certain reasons are given that justify immediate termination without observing the ordinary termination periods.

The court ruled that these two termination regimes are mutually exclusive. An employer confronted with a significant violation of employee duties must decide whether to issue an ordinary or extraordinary termination, the decision of which will be binding.

The foreign government argued that there were employment guidelines in place that required the foreign embassy to conduct a disciplinary investigation before the termination of an employment relationship or to take any other action in order to protect employees. The Supreme Court had ruled in previous cases that non-observance of internal investigations required by respective employment guidelines may lead to an abusive dismissal resulting in damages claims of up to six months. However, these court precedents were rendered in the context of ordinary employment terminations, while in the present case the employer had chosen a middle path which the court dismissed.

The court did not have to address the question regarding whether the foreign government enjoyed the privilege of diplomatic immunity before the Geneva employment courts as this defence was not raised. However, the staff member had obviously executed public functions during his tenure.

For further information on this topic please contact Thomas Rihm at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email (thomas.rihm@rihm-law.ch). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.

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