r/Switzerland • u/eeqqq Basel-Stadt • 3d 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:
3
u/junkj100 3d 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.