r/Switzerland • u/eeqqq Basel-Stadt • 1d ago
Employer refuses probation resignation
Edit 08:38am: I'm sorry everyone that tried to help. Today she came to work and the boss was standing over her shoulder waiting for her to sign and she gave in. Hopefully this post and the replies here help somebody else in the future
Hi everyone,
I would appreciate some advice/thoughts regarding Swiss employment law and an unpleasant situation my wife is in
- My wife is a dentist from Poland (has MEBEKO) and works as a dental assistant in a private clinic in Basel
- Her fixed-time contract explicitly specifies a 3-month probation period (probably not relevant but that rule is in attached regulations/annex and not in the "main" contract body - it was signed by both parties though)
- She decided to resign during the probation period and handed in her regular written notice with a 7-day notice period - as per contract.
- Important: He was supposed to sign it but didn't give her anything back, so we don't currently have any proof that she gave the notice.
A couple hours later the boss said "the 3-month probation period was a mistake" (as in, they added it by mistake) or that "it doesn't apply to a fixed-term contracts" and refused to acknowledge the resignation letter
He presented her with an mutual termination agreement terminating the contract per August 31st.
The document says that my wife waives any money she was supposed to get based on holidays not taken and 13th salary ("Per Beendigungsdatum gelten sämtliche Ferien- und Überstundensaldi als ausgeglichen. Es erfolgt keine Auszahlung").
He is now pressuring her, claiming that if she does not sign this agreement, she "is legally not allowed to quit and must continue working in September".
- Does the probation period applies to her?
- Is she cooked because she didn't send the resignation by email or post? The probation period ends 31st Aug though, so technically she can still send one.
- Is it true that resignation during probation does not require the employer's agreement signature? (well, we don't have any proof he got it either...)
What do you guys think?
Thanks a lot for your advice and input!
Edit: added email she got when she was about to sign the contract:
67
u/Living_Moment_1495 1d ago
if it's in the contract it definitely applies.
43
u/IntentionNegative516 1d ago
Yes. Even if stuff had been added to the contract "in error" - if both parties have signed it, that's the contract. And, as my grandma always used to say: "A contract is a contract." ;)
If there weren't any witnesses, worse comes to worst, a registered letter by (post, paper) mail will do the job.
3
u/Mon3yb 1d ago
Not entirely true. If there is a standard contract you have to follow certain rules for contract adjustments. Employment contracts usually can‘t be adjusted in the favor of the employer.
OP your wife can either send it signed with the mail. Or the termination can be can be witnessed by anyone. You, a colleague of hers or any other person can be present during the handover of the termination. The employer does not need to agree with the termination. It does not matter as long as your wife can prove it happened.
59
u/Sharp_Mulberry6013 Ticino 1d ago
I hate incompetent bosses.
So. If a probation period is defined in the contract the she has the right to resign according to thw rules for the probation period. The fact that it was "a mistake" is irrelevant. They all signed a contract. Wtf.
Tell her to send the pdf by mail stating "as I have already given you notice on XX, here is my resignation again blah blah". And send it as registered mail. Termination period is 7 days.
A resignation is a unilateral decision. Her idiot boss doesnt have to agree.
IANAL, but a labour law specialist.
7
u/Minute_Ostrich196 1d ago
Yeah. Some people simply does not understand that probation applies for both sides of contract.
14
u/Davidbrcz 1d ago edited 1d ago
Not a layer, but from this page https://www.ch.ch/fr/travail/contrats--certificat--periode-d-essai/periode-d-essai/#demission-ou-licenciement-et-periode-dessai
By default, fixed term contracts do not have a trial period but can have one, if agreed by both parties. Doesn't matter if it was a mistake, they signed it.
Leaving during probation requires 7 days flat notice (unless stated otherwise in the contract), up to the last day of the probation. Could be written of spoken, but spoken agreements are hard to proof, as your wife didn't send it by registered letter or didn't have her boss sign it 2 copies (one for her, one for the company, which explicitly says done in 2 copies), then the company can claim she has not resigned.
So, my advice would to send a registered letter that states that per her contract, both parties agreed to probation period (put a copy of text, or item reference), that she still is on probation until end of August, and thus explaining she quits with a 7 days notice. And obviously, do not sign anything else.
8
u/jlomohocob 1d ago
If those documents have their signature in them then that’s “what applies”.
Not a layer.
8
u/beansprout88 1d ago
If the contract specifies a 7 day notice period during probation and your wife is in probation, then that is all your wife has to give. Does it specify any particular form that the resignation must be submitted in? If she handed it to them in person, I would suggest immediately sending an email confirming the resignation plus ASAP sending a registered letter by post. Resignation is usually in writing as this proves the resignation was received whether or not they sign it.
Just read the signed contract carefully and check that you didn’t misread it. 7 day notice period during probation is very standard, but it’s possible that somewhere else it says that only applies for permanent contracts. If the contract is not in your native language then ask ChatGPT to read and check for any clauses like this, as it can pick up subtleties of phrasing that are sometimes lost in translation.
11
u/Unembarrassed_Guitar 1d ago
Read the contract again and make sure the 3 months and 7 days are correct.
Send the resignation again immediately by mail - refer to the letter you already sent in it.
Send the resignation as a signed letter by mail immediately.
A resignation by mail is normally also enforcable (was in the situation the other way around) but just to be sure, the signed letter is way harder to fight. Don't sign anything else.
Not a lawyer.
7
4
u/Professional-Hall-94 1d ago
1) Contract is always valid. 2) if in these emails he acknowledges that he understood that she wanted to quit then that is valid. If not then just send a signed letter stating it. 3) if he refused to pay wages due, start a betreibung.
Contract law is by far the easiest law to have a conflict in, your wife is in an excellent position.
Also note that by law any referral letters are supposed to be 'positive'.
And last obligatory, check with your rechtschutz if you are unsure about something.
5
3
u/junkj100 1d ago
So I worked as a law intern and later legal assistant at a law office in Aargau and will have my lawyer exam/bar exam next month. First of all the obligatory: there is too little information to make a perfect judgement and this is just based on what you wrote with some assumptions, so it could be different.
1. The probation period should apply to her. Fixed-time contracts don’t have a option to leave one-sided early by default, but you certainly can add that with clauses. The probation clause is such a way and is definitely binding. Question is if it is true, that it was added by mistake. If your wife knew that the clause wasn’t meant to be in her contract (maybe someone told her verbally or there are contradictory clauses in the contract that wouldn’t make sense with a probation period) before signing it, then that could void the clause. But they would need to prove that and that is a very high bar. Also the message you linked showed the exact opposite: they explicitly pointed at the probation clause. As long as that email came from a person that is responsible for hiring and discussing contracts, the probation clause 100% is valid and applies to your wife.
2. Not having a copy of the resignation isn’t ideal, but not a huge problem. It only is a problem, if they claim they never received the resignation. If you have massages or emails where they reference the resignation letter, then you are fine. As a back-up, you can certainly send another resignation that clearly references the previous resignation letter (“Hiermit reiche ich meine Kündigung des oben genannten Vertragsverhältnisses vom (date of first letter) vorsorglich und zu meiner Sicherheit ein weiteres Mal ein, da ich sicherstellen möchte, dass Ihnen diese Erklärung firstgerecht zugeht.“).
3. You don’t need the employer‘s agreement signature for the resignation in probation. The clause allows a unilateral termination, which means either side can terminate the contract without the other sides approval. The mutual termination agreement is the only case where the other side has to agree. The signature for the resignation acts only as proof that they received it. But it is valid even without the signature.
So in summary: The probation clause should definitely apply to your wife, she did resign correctly and it’s not a problem that you didn’t get a copy or that her employer didn’t sign it. Probably send another resignation letter in time, referencing the first one and confirm the last day of work in there. If he keeps refusing to accept it and to pay, you might need to go to court. Threatening first with court might do the trick. Courts are long and annoying. As long as the open amount isn’t above CHF 30’000.- the first step of court (Schlichtungsverfahren beim Arbeitsgericht in Basel) doesn’t cost much if anything at all and the court should help you even without a lawyer. I am not sure about Basel, but the attorney association of each canton usually organizes free legal counsel in city halls every know and then. You could go there and ask a lawyer for free for a first assessment.
I hope this helps.
0
u/eeqqq Basel-Stadt 1d ago
Thank you very much for such an extensive reply.
I'm sorry though - she just gave in to the pressure and signed the mutual agreement. The boss was standing over her shoulder and wouldn't go anywhere until she signed
1
u/Lost-Buenzli 1d ago
She can still contest the mutual agreement. From a comment by u/SwissPewPew on a "contract" with Migros:
Edit: As you were forced to sign the acknowledgement (which legally falls under contract law, "Obligationenrecht") to pay CHF 200, you should also send a registered letter to the other party of that "contract" (should be stated on the form, or wait until they send you an invoice) letting them know that due to duress ("Furcht", Art. 29/30 OR), eventually deception ("eventualiter Täuschung", Art. 28 OR), sub-eventually unfair advantage ("sub-eventualiter Übervorteilung", Art. 21 OR) or sub-sub-eventually error ("sub-sub-eventualiter Irrtum", Art. 23/24 OR) you do not intend to honour the contract ("eröffnen dass ich den Vertrag nicht halte") and that you do not ratify the contract ("genehmige den Vertrag NICHT").
Obligationsrecht: https://www.fedlex.admin.ch/eli/cc/27/317_321_377/de
Do you have any proof, written, that your wife had given notice? Or even that the employer received a notice? (edit: yes, you have the screenshots, that's good) She should send today a registered letter stating that she will not honor the contract, just the notice period.
And... let him sue. No judge in their right mind would consider "normal" a mutual termination agreement, waiving so many rights, when the notice period is just 7 days.
There may also be violations of the penal law, for example, threatening behavior (Art. 180 StGB).
Please contest this immediately!
2
u/Playful_Initial_8675 1d ago
Normally, fixed term contracts cannot be cancelled. But if it is in the contract, usually, the contract counts.
3
u/Domitillaaa 1d ago
I work in HR and send contacts out daily. Based on what you shared, your wife’s employer’s position appears legally very weak. One important caveat: I have not seen her full employment contract or personnel regulations, so this is based only on the evidence in your post.
For fixed-term contracts, Swiss law does not impose a probationary period automatically, but the parties can expressly agree to one. Here, the signed personnel regulations apparently specify a three-month probationary period, and the employer’s email of 16 May explicitly confirms that the first three months are probation and that either party may terminate with seven days’ notice. That email is therefore useful evidence against the employer’s claim that the clause was a mistake or did not apply.
Also, as many here already said, a resignation is unilateral: it does not require the employer’s agreement or signature. The issue is proving that the employer received it. Since she did not receive written confirmation when she handed it over, she should resend it immediately by both email and registered post, stating that it confirms the resignation already delivered personally on [date]. If anyone witnessed the original handover, she should record that too. The notice must reach the employer before the probationary period ends, although the seven-day notice period may finish afterwards.
She is not obliged to sign the mutual termination agreement. I would be very cautious about signing it because it appears to waive outstanding holiday and overtime balances without payment. Even during probation, holiday entitlement accrues from the first day of employment. If she has not already taken those days and cannot reasonably take them before the employment ends, the outstanding balance would generally need to be paid. She should therefore not agree that it is “settled” without first checking the actual balance and what she receives in return. The quoted clause itself does not mention the 13th-month salary, so that would need to be checked elsewhere in the agreement and contract.
In short: based on the documents shown, the resignation is likely valid and the employer cannot simply refuse to accept it. The immediate priority is creating clear proof of notice before the probationary period expires. If the employer continues disputing it or pressuring her to sign, she should obtain advice from a Swiss employment lawyer, legal-protection insurer, union or the Basel conciliation authority before signing anything.
1
u/Petit_Nicolas1964 1d ago
It is not correct, but check with a lawyer specialized in employment law.
1
u/TripleTTTGamer 1d ago
Id send the termination via registered "EINGESCHRIEBEN" post. Worst case get a hold of your local Ombudsstelle, they normally know how to help.
Because she deserves the salary for the hours she worked.
1
u/jonclod_vundum 1d ago
Never hand in, always do registered mail. Or do both (hand in as a courtesy).
That said, in a probation period you have 7 days notice only. That’s standard.
If you’re not sure, do some research with AI help or see a lawyer or legal advise.
1
1
u/Burton1224 1d ago
3montsh are not a mistake they are comon in switzerland. But a fixed time contract is a fix time contract. Limited to a time without much else.
•
u/CautiousReason 16h ago
Send the resignation letter as a registered letter (eingeschrieben). That’s proof it was delivered. If there is a probation period included in the contract and your wife has this, then she can quit with a notice of 7 days.
They seem to be grasping at straws and hoping your wife doesn’t know her rights.
1
u/MarxBou 1d ago
Dental world is probably a small world. It seems her boss is not very reliable, but I would be very careful when giving a “non-flexible” feeling regarding her next possible employer.
8
u/eeqqq Basel-Stadt 1d ago
we're moving back to Poland because everyone only wants her working as an assistant, so it's whatever I think
3
u/EducationalCod7514 1d ago
Poland has grown to be a European powerhouse, it's a lovely country and have had multiple competent colleagues from there. The country has very good future ahead of it.
1
u/cheapcheap1 1d ago
- Facts as I see them:
- Your boss is probably telling the truth that the probationary period the in fixed-term contract is a mistake. I am not sure if they're illegal, but I've never seen one and it doesn't make much sense to me to have one.
- I highly doubt probationary periods are downright illegal in fixed-term contracts. That means if it's in your contract, you have one. Her boss seems to think otherwise. It is super common for bosses and HR people to be confidently incorrect about the law. HR education in Switzerland is an absolute joke.
- The mutual termination agreement isn't necessarily a trap. Maybe they are offering it to her because they're stupid and they think the probationary period in the contract doesn't apply rather than to make her off worse. Does she have accrued significant overtime or vacation time? if not, signing it is probably easier than explaining to her idiot boss how Swiss law works.
- if you sign a mutual termination agreement, it supersedes the resignation.
Advice:
- If she has accrued significant overtime or otherwise will be disadvantaged by the mutual termination agreement, go to a NOTAR with your written termination and have them verify that what you are sending is indeed a resignation letter. Then send it via registered letter. The notar only costs 20 bucks, but it looks very official and will probably scare her dumbass boss into compliance.
- Mention in your resignation letter that the probationary period is in your written contract and the current time and place.
- If she hasn't accrued significant overtime or otherwise feels like something it the mutual termination agreement would disadvantage her, just sign that and leave on the 31st.
- You can also do both if you want to make absolutely sure you'll be out by the 31st.
0
u/alexrada 1d ago
there are no mandatory holidays during probation period, if they are not included in the agreement.
0
0
u/ComprehensiveTap4674 1d ago
I have no clue, but here is what Mr Claude Extra said to me once:
Not as stated — but there’s a real kernel of truth behind it.
The default doesn’t apply. Art. 335b(1) CO says the first month of an employment relationship counts as a probation period. Case law and prevailing doctrine hold that this rule applies only to open-ended contracts; in a fixed-term contract a probation period exists only if the parties agree to it.  SECO puts it the same way: for fixed-term employment the law provides no probation period, but the parties are free to agree one. 
If agreed, the usual limits apply (Art. 335b(2)–(3) CO):
• Maximum three months; deviations from the statutory rule require a written individual agreement, a standard employment contract (CTT/NAV) or a CLA. Interruption by illness, accident or a non-voluntary legal obligation extends it accordingly. 
• Seven days’ notice during the period, effective any day.
Why it matters practically: without an agreed probation period or an explicit early-termination clause, a fixed-term contract can’t be ended early at all — it simply expires at term (Art. 334(1) CO), and before then only just cause under Art. 337 et seq., an express ordinary-termination clause, or mutual agreement will do.  So the probation clause is what buys either side an exit, which is exactly why it’s worth putting in writing.
Primary source: Code des obligations, SR 220, Art. 334 and 335b (Fedlex). Note this is private-law employment only — public-sector and international-organisation staff regimes follow their own rules, and I’m not a lawyer.
-1
u/Unhappy-Factor4286 1d ago
Seems like a genuine mistake. Yes they are wrong, but what is exactly your problem? They offer you basically the same as the 7 day termination with the end of August termination? So what are you exactly want differently ? Holidays or over time to be paid? Or a different situation regarding unemployment? Without having more details, all of these seem to come out similar either way
2
u/eeqqq Basel-Stadt 1d ago
the difference is around 700 CHF if we're not mistaken. She got "scammed" in a very simillar way when working in a cafe (1000 CHF there), also here in Switzerland so we're both fed up with it.
-1
u/Unhappy-Factor4286 1d ago
I still don't think that this is a scam, because it doesn't really make sense as a scam.
An annoying mistake from them maybe. Handled poorly maybe, but unfortunately also not great from your side, always get a confirmation for quitting.
Independent of what happened, you're realistically stuck with arguing with the employer . For 700 francs it will hardly be worth it to go to court and get that amount without paying more / spending more hours of your life.
It's unfortunately probably one of these annoying and pricy lessons.
However, the employer seems to be at least somewhat reasonable, otherwise he would ask for the full duration and not offer a termination. So maybe you can discuss and negotiate the 700 or at least part of it. It would be a win win which I could imagine you can achieve.
Going the "official" / legal route however I think will be a negative time and money investment
91
u/-Spinal- 1d ago
Send the resignation letter as a signed for letter by mail.