In a March 19 2012 decision the Swiss Supreme Court confirmed its longstanding practice that the employment contract of employees who also carry out union leader activities can be terminated for mere economic reasons.

A journalist sued his employer, a major media group in Zurich, following his dismissal along with 56 colleagues in May 2009. The claimant argued that his role as chairman of the workers' council negotiating with the media group on a social plan in Spring 2009 had ultimately led to his dismissal.

Both the Zurich Supreme Court and the Swiss Supreme Court rejected the claimant's view that Article 336, Paragraph 2 of the Swiss Code of Obligations provides extended protection against unfair dismissal of union leaders.

Article 336, Paragraph 2 requires the existence of justified motives for terminating the contract of an employee who carries out union leader activities. The employer must demonstrate that the termination occurred due to, for instance, the employee's underperformance or other justified reasons. Thus, the claimant's argument was unsuccessful.

The Swiss Parliament is scheduled this year to discuss proposed legislation that would increase employees' protection against unfair dismissal. The proposed legislation would also strengthen the protection of employees who carry out union leader activities against dismissal, which would bring Switzerland into line again with the relevant International Labour Organisation agreements.

For further information on this topic please contact Thomas Rihm at Thouvenin Rechtsanwälte by telephone (+41 44 421 45 45) or by fax (+41 44 421 45 00) or by email ([email protected]).