Facts
The A. AG (employer) initially terminated the employment relationship with B. (employee) on an ordinary basis. One month later, the employer terminated the employment relationship with immediate effect, citing as grounds that the employee had acted in a manner detrimental to business with an important business partner. In the course of proceedings initiated by B. against A. AG to review the immediate termination, the employer subsequently introduced an additional ground for the immediate termination: the unauthorised copying of a hard drive by the employee.
The case was heard before the Swiss Federal Supreme Court as a civil appeal (4A_109/2016) on 11 August 2016. The lower court had partially upheld the immediate termination as justified, while assessing the question of the subsequent introduction of grounds for dismissal differently.
Considerations
The Federal Supreme Court first examined the requirements for an immediate termination under Art. 337 CO. According to this provision, immediate termination of the employment contract is only justified in the case of particularly serious breaches of duty by the employee that are objectively capable of destroying CO so fundamentally shaking the essential basis of trust in the employment relationship that the employer can no longer reasonably be expected to continue the contract. Moreover, these breaches must have actually led to such a loss of trust. In the case of less serious breaches, a warning is required, and the breaches must recur despite such a warning.
In the present case, the question arose as to whether a subsequently introduced ground for dismissal – here the unauthorised copying of a hard drive – may be taken into account, even though it is not similar CO of the same nature as the originally stated ground (detrimental conduct towards a business partner). The Federal Supreme Court confirmed its consistent case law, according to which the subsequent introduction of grounds for dismissal is permissible provided that the party terminating the contract was not aware of this circumstance at the time of termination and could not reasonably have been expected to be aware of it. The decisive factor is whether the subsequently introduced ground – if it had been known – would also have led to a sufficient loss of trust justifying immediate termination.
The court pointed out that the view, partly held in academic literature, that the subsequently introduced ground must be similar CO of the same nature as the original ground is based on an incorrect translation and interpretation of earlier decisions. In fact, what matters is not the similarity of the grounds, but whether the totality of the grounds – including the subsequently introduced one – can establish a sufficient loss of trust. The case law of the Federal Supreme Court does not require grounds to be of the same nature, but rather an assessment…