Music and the law: should I accept a reduction in my working hours shortly before retirement?
An example inspired by the practice of the legal counsel of the Swiss Society for Music Pedagogy. Yvette Kovacs, Doctor of Law, SSPM legal advisor and attorney-at-law in Zurich, answers questions from SSPM members.
Question from an SSPM member: I've been working at my music school for many years and will soon be retiring. Does the music school have the right to hire a new teacher and assign all new registrations to him/her?
Response from Yvette Kovacs:
1. The first question is whether your employment contract or customary law entitles you to the allocation of all new entries. This should be ascertained by checking your employment contract, any regulations and the way in which the new registrations have actually been allocated to date.
2. If you have no contractual or customary right to new enrolments, it is perfectly legal for them to be assigned to a new teacher before you retire.
3. If you have a right to new entries, the following principles apply:
-Assigning a pupil to a new teacher is to be regarded as a partial termination of your employment contract. This must be done in the form and within the period stipulated in the contract. If this is the case, there are no restrictions on the employer's right to terminate the contract, particularly as regards the reasons for doing so.
-However, the employer's duty to assist the employee means that he or she must avoid unfair dismissal. Unfair dismissal may occur if an employee has worked for his employer for decades in an irreproachable manner and is dismissed a few months before his normal retirement date. The employer must allow the employee to complete his professional activity without suffering financial loss, provided there are no compelling reasons for terminating the employment contract. If this is the case, the interests of the employee must be weighed up, bearing in mind that the interests of the older employee, who will no longer be able to find work shortly before retirement, weigh heavily in the balance. On the other hand, if the employee can be accused of misconduct, the employer's legitimate interest in dismissing him or her may be predominant. Factual reasons, such as informing the new teacher in good time, may also justify partial termination.
-In this case, the interests of all concerned must be weighed up. Your interest as a teacher who has worked impeccably for many, many years weighs heavily. The interest of new students in continuity of teaching is also considerable, but on the other hand, it may make sense for them to "go through" several teachers and learn different techniques. That's why I believe that your interests prevail, although I am aware that a court of law might rule differently. This is a matter of judgment, the outcome of which is difficult to predict.
-In view of the above, I recommend the following compromise solution, which is not based on a claim, but requires an agreement between employer and employee: in principle, all new enrolments should be assigned to the current teacher who is doing an irreproachable job. If, however, a new pupil expressly wishes to be assigned to the future teacher, this wish must be respected. Similarly, if the current teacher wishes a pupil to be allocated to his or her future replacement, this should also be taken into account. A teacher who is about to retire, and who has worked for many years in an irreproachable manner, should nevertheless be guaranteed an average rate of activity during his or her last year of work, in order to avoid sudden losses of earnings which could no longer be compensated.
-If an amicable solution cannot be found, the employee has the choice of either accepting the employer's decision or opposing it. To do so, he must protest in writing against the decision during the notice period, and claim compensation from the industrial tribunal within 180 days of the end of the employment relationship. The court cannot cancel the notice retroactively, but it can set an appropriate indemnity, representing a maximum of six months' salary, to be paid by the employer. This would guarantee the employee's financial interests.
An example inspired by the practice of the legal counsel of the Swiss Society for Music Pedagogy. Yvette Kovacs, Doctor of Law, SSPM legal advisor and attorney-at-law in Zurich, answers questions from SSPM members.
Question from an SSPM member: I've been working at my music school for many years and will soon be retiring. Does the music school have the right to hire a new teacher and assign all new registrations to him/her?
Response from Yvette Kovacs:
1. The first question is whether your employment contract or customary law entitles you to the allocation of all new entries. This should be ascertained by checking your employment contract, any regulations and the way in which the new registrations have actually been allocated to date.
2. If you have no contractual or customary right to new enrolments, it is perfectly legal for them to be assigned to a new teacher before you retire.
3. If you have a right to new entries, the following principles apply:
-Assigning a pupil to a new teacher is to be regarded as a partial termination of your employment contract. This must be done in the form and within the period stipulated in the contract. If this is the case, there are no restrictions on the employer's right to terminate the contract, particularly as regards the reasons for doing so.
-However, the employer's duty to assist the employee means that he or she must avoid unfair dismissal. Unfair dismissal may occur if an employee has worked for his employer for decades in an irreproachable manner and is dismissed a few months before his normal retirement date. The employer must allow the employee to complete his professional activity without suffering financial loss, provided there are no compelling reasons for terminating the employment contract. If this is the case, the interests of the employee must be weighed up, bearing in mind that the interests of the older employee, who will no longer be able to find work shortly before retirement, weigh heavily in the balance. On the other hand, if the employee can be accused of misconduct, the employer's legitimate interest in dismissing him or her may be predominant. Factual reasons, such as informing the new teacher in good time, may also justify partial termination.
-In this case, the interests of all concerned must be weighed up. Your interest as a teacher who has worked impeccably for many, many years weighs heavily. The interest of new students in continuity of teaching is also considerable, but on the other hand, it may make sense for them to "go through" several teachers and learn different techniques. That's why I believe that your interests prevail, although I am aware that a court of law might rule differently. This is a matter of judgment, the outcome of which is difficult to predict.
-In view of the above, I recommend the following compromise solution, which is not based on a claim, but requires an agreement between employer and employee: in principle, all new enrolments should be assigned to the current teacher who is doing an irreproachable job. If, however, a new pupil expressly wishes to be assigned to the future teacher, this wish must be respected. Similarly, if the current teacher wishes a pupil to be allocated to his or her future replacement, this should also be taken into account. A teacher who is about to retire, and who has worked for many years in an irreproachable manner, should nevertheless be guaranteed an average rate of activity during his or her last year of work, in order to avoid sudden losses of earnings which could no longer be compensated.
-If an amicable solution cannot be found, the employee has the choice of either accepting the employer's decision or opposing it. To do so, he must protest in writing against the decision during the notice period, and claim compensation from the industrial tribunal within 180 days of the end of the employment relationship. The court cannot cancel the notice retroactively, but it can set an appropriate indemnity, representing a maximum of six months' salary, to be paid by the employer. This would guarantee the employee's financial interests.
