Professional Excellence – Employment Law – Graf & Partner

In your opinion, what do you think companies ought to implement to ensure their employees are happy?

Employees are happy with their work if, overall, they feel well “rewarded” for the work performed.

Besides monetary remuneration such rewards, in particular, should include:

• regular verbal appreciation for the work performed;
• communication of (achievable) targets and regular surveys whether these targets were achieved and, if not, what the employee could do to improve;
• installation of a hot line or a contact person through which or to whom employees can report irregularities, incidents of discrimination, sexual harassment, bullying or mobbing without facing retaliation and recognisable disciplinary measures against those who do not obey to these rules;
• flexible working hours and feasible options regarding child care;
• appropriate health and safety measurements, and, from our perspective, very important: no expectation of 24/7 availability online or over the phone. Employers have to make sure that employees get a sense of what needs to be addressed forthwith and what can wait. Further, overtime should be limited to an absolute minimum (because it causes frustration on the part of the employee and additional cost on the part of the employer) and the rule should be that at least ten days of vacation per year have to be taken in a row. If these rules are followed the reward is two-fold: employees can recharge their batteries and less burn outs will occur which, in turn, means on the employer’s part, more productive and motivated employees and less sunk cost in connection with absent and sick employees.

What do you think is the best way for companies to deal with termination of an employment relationship? What must be taken into account?

To terminate an employment relationship is always a difficult decision which should be well thought over. Because Switzerland, in comparison with other European countries, still has an employer friendly employment legislation, termination of an employment relationship is quite straight forward from a legal perspective. Unless a termination is deemed to be unfair in the sense of the law (based on political opinion, gender, sexual orientation, etc.) an employment relationship can be terminated at will, only subject to the observance of the statutory or contractual notice period. This means that non- or underperformance is a valid reason for termination. Swiss law does not know the principle of “reinstatement” which means that even if the termination is unfair in the sense of the law, the employment relationship is still terminated.

We recommend that the termination process follows certain pre-established procedures. This means that if the reason for termination is, for instance, based on non- or underperformance the employee concerned should be aware of the issue and have been given a chance to improve. If the reason for termination is due to disciplinary measures as a result of employee misconduct, the employee concerned must have the right to be confronted with the facts and defend him- or herself.

Do you think that national employment legislation can or should influence multinational companies in their decision to locate their operations abroad?

When deciding on where to locate their operations abroad, multinational companies mainly outweigh the following criteria against each other with respect to possible prospective locations:

• Infrastructure and availability of office or production facilities;
• Availability of qualified human resources locally;
• Willingness of human resources to relocate from abroad (which mainly depends on attractiveness of location and availability of visa and working permits);
• costs involved in connection with setting up operations in one location compared with other locations;
• tax incentives;
• efficiency of local administration.

We are of the opinion that, in addition to the above criteria, companies should also take the following "legal" criteria into account in their decision-taking process:

• employer friendliness of local law (in particular in connection with the termination of an employment relationship);
• predictability of judicial decisions.

The more employer friendly the local law, the better the company's ability to flexibly react to market changes and business needs which, in turn, will have an important impact on the overall profitability of the business. The predictability of judicial decisions helps to evaluate the pros and cons of an action and to take a final decision on an informed basis.

Dr. Hans Jörg Graf, LL.M., Attorney-at-Law
graf@grafundpartner.ch

Attorneys-at-Law
Seegartenstrasse 2
Postfach
CH-8022 Zürich

T +41 44 221 17 17

www.grafundpartner.ch

Hans Jörg Graf is the Founding and Managing Partner of Graf & Partner, a boutique law firm in Zürich Switzerland. The major focus of the firm's activities is on all areas of national and international business law with a strong focus on employment law. Graf & Partner is a member of Ellint, a European network of law firms specialised in employment law with more 120 professionals and offices in nine European countries. Hans Jörg Graf has a long term and profound experience as legal practitioner and is admitted to the bars of Switzerland and New York.