Facts

Parties and procedure: The claimant and appellant, a senior employee, had worked since 1995 for the air transport company [B.] (the defendant and respondent, whose registered office is in Jordan). The Geneva Cantonal Unemployment Fund intervened as a respondent. The civil appeal is directed against the judgment of the Employment Chamber of the Geneva Court of Justice of 30 October 2019 (C/15974/2017-3, CAPH/187/2019).

Employment history: The claimant was transferred to Bahrain in 2007 as sales director, then appointed in 2010 as regional director for Switzerland with a transfer to Geneva, where his wife was already living. From 2016 he also served as regional director for France.

Disputed transfer: On 10 August 2016, the employer required his transfer to the head office in Jordan from 1 December 2016. The claimant refused, citing his wife's residence in Geneva, and never returned to Jordan. The employer argues that he failed to act diligently in the residence permit applications of his successors, which caused a delay. On 12 January 2017, he lost his title of regional director for France. On 18 January 2017, his transfer to Jordan was set for 16 April 2017.

Formal notices and dismissal: On 25 April 2017, then on 22 May 2017 (deadline 3 June), the employer ordered the claimant to hand over his position to his successor and return to Jordan, under threat of immediate termination. It published a notice in the Official Gazette of Jordan regarding his unjustified absence. On 7 June 2017, it dismissed him with effect from 3 June 2017 for unjustified absence.

Incapacity to work: The claimant suffered a partial incapacity of 50% from 12 January to 10 May 2017, then total incapacity from 11 May to 11 July 2017.

Action and judgments: On 21 December 2017, the claimant brought an action before the Geneva Employment Tribunal, claiming CHF 286,000, including CHF 42,900 in salary for the three-month notice period, as well as airline tickets. The intervener claimed subrogation to the unemployment benefits paid (CHF 32,314.80) with interest at 5% from 5 October 2017. The tribunal awarded CHF 271.90 for half a day of untaken vacation and dismissed the remainder, including the intervener's action. The Court of Justice dismissed the claimant's appeal.

Claims before the Federal Supreme Court: The claimant seeks payment of CHF 28,600 (notice pay), CHF 85,900 (compensation for abusive dismissal) and CHF 14,300 (moral damages), with interest at 5% from 3 June 2017, as well as airline tickets. In the alternative, he requests annulment of the judgment and remittal. The defendant seeks dismissal of the appeal. The intervener maintains its claims and waives its right to submit observations.

Considerations

Admissibility: The claims for interest are new (Art. 99 para. 2 FSCA) and inadmissible. The claims relating to airline tickets are insufficiently precise and unsubstantiated (Art. 42 para. 1 and 2 FSCA), and are therefore inadmissible. The civil appeal is otherwise admissible, in particular with regard to the amount in dispute.

Applicable law: It is undisputed that the parties were bound by an employment contract from the transfer to Geneva. No choice of foreign law having been alleged or proven (Art. 121 para. 3 PILA), the relationship is governed by Swiss law (Art. 121 para. 1 PILA and Art. 319 et seq. CO), by reason of the State where the work was habitually performed.

Immediate termination (Art. 337 CO): The indefinite-term contract could be terminated ordinarily (Art. 335c CO) or immediately for good cause (Art. 337 and 337a CO). Immediate termination is an exceptional measure, admitted restrictively: only a particularly serious breach, or a less serious breach repeated despite a warning, may justify it. The judge assesses freely according to equity (Art. 4 CC and Art. 337 para. 3 CO). The Court of Justice found the existence of a "system of transfers every three years" and the absence of evidence of a lasting career agreement in Geneva. It held that the persistent refusal of the transfer, the failure to replace the successor and the absence of any response to the formal notices constituted a serious breach justifying the abrupt termination. The Federal Supreme Court censures this assessment: a transfer to another country in principle implies the conclusion of a new contract (tacit or express), and the existing contract continues to bind the parties as long as it has not been terminated in accordance with its terms. As soon as it was clear that the transfer would not take place by mutual agreement, the employer could terminate ordinarily with the notice period. The delay caused by his strategy did not justify an abrupt termination, even if the claimant's conduct was open to criticism. The claimant was not obliged to accept the proposed contractual modification. The immediate termination of 7 June 2017 is therefore invalid under Art. 337 para. 1 and 2 CO.

Absence of abusive dismissal (Art. 336 CO): The claimant is not entitled to invoke an abusive dismissal. An ordinary termination would not have been abusive, since the practice of regular transfers was known and had already been applied to the claimant. The dismissal is not abusive merely because it disrupts the family situation. The refusal to conclude a new contract falls within contractual…