Examining thoroughly whether an employee’s misconduct is severe enough before dismissing without notice has been highlighted by a recent Swiss Federal Supreme Court decision.
The decision, announced in May, concerned the employee of a catering company at Geneva international airport, who was caught driving on the tarmac with a blood-alcohol concentration of between 0.47 and 0.5 per ml. The employer terminated the relationship without notice, as both the employer’s regulations and the airport policy forbid driving on the tarmac with more than a 0.0 per ml blood-alcohol level.
The court ruled the dismissal unlawful, because driving with a blood alcohol concentration between 0.47 and 0.5 per ml did not breach any criminal law, and the employee’s previous alcohol tests had never been positive, meaning the employer’s behaviour constituted only a moderately severe misconduct. A further argument in favour of the employee was that his blood-alcohol concentration did not affect his work performance or endanger anybody during his drive. The court also took into account that the employee did not hold a senior position within the catering company, and therefore his behaviour could not be viewed as a bad example for younger colleagues.
Swiss employment law states that a valid reason justifying a dismissal without notice period is considered to be any circumstance under which, if existing, the terminating party can in good faith not be expected to continue the employment relationship. In this case, the employer was convicted to pay to the employee a compensation equivalent to the salary owed by the employer if the latter had terminated the employment relationship with the proper notice period set forth in his contract.
Decision of the Federal Supreme Court 4A_115/210 of May 14, 2010