The tip: can I get fired over the phone?

I was recently hired on a permanent contract and am currently in my three-month trial period. Last week, while I was out for a walk on my day off, my employer called me to tell me my contract was ending. He gave me no explicit reason and did not even confirm this information to me in writing. I didn’t expect it and am distraught: is this termination valid?

J. Geneva

Such telephone termination is problematic and could be contested. In Swiss labor law, article 335b of the Code of Obligations certainly provides that during the trial period, either party may terminate the contract with seven days’ notice, unless otherwise agreed. However, this termination must respect certain formal and procedural requirements, in particular those linked to the notification of the leave and the proof that the party invoking it must be able to provide.

In a case brought before the Federal Court in 2023, an employer claimed to have terminated a contract during the trial period via telephone communication. However, due to lack of clear and tangible proof, this termination was not considered to have been validly notified. The employer bears the burden of proving that the termination was actually communicated to the employee, in accordance with the principle established by article 8 of the Civil Code. If the proof of notification is insufficient or non-existent, said termination will not produce legal effect.

In the situation you describe, the absence of written confirmation of the termination leaves uncertainty as to its validity. A termination, although orally possible, must be clear, devoid of any ambiguity and capable of being proven. The telephone call you mention – not having been followed by a written document – ​​does not meet these criteria. Note that the employer could also have organized a prior interview to clarify the reasons for this termination, although this is not a strict obligation.

Our Supreme Court also emphasizes that mere allegations cannot be used to justify a legal act of such importance. If the employer claims that the contract has ended, it must provide solid proof, such as written documents or credible testimonies. You could thus argue that your employment contract is still in force and request payment of wages which are owed to you. This includes not only the salary that is still accruing, but also any unused leave or other benefits provided for in your contract.

It would still be wise to quickly clarify your status with your employer, because an ambiguous situation is rather a source of problems while each party to the employment contract is supposed to behave in good faith.

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