Music and law: protection against dismissal during sabbatical leave?
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 took a year's sabbatical, which I devoted to extensive travels in Asia. On my return, I was stunned to learn that my music school had dismissed me and that my position had already been filled during my absence. Can I object to this dismissal?
Response from Yvette Kovacs:
Many employees take a sabbatical to pursue further training or simply to rest. They assume they'll be back in their jobs when they return. The above question raised by a member shows that caution is called for in this area.
From a legal point of view, sabbatical leave is treated as unpaid leave. The employment relationship continues during the leave, but many of the rights and duties of both parties are suspended, in particular those relating to the obligation to pay wages and the obligation to work.
In the absence of other agreements, the provisions relating to dismissal are the same as if there were no unpaid leave. This means that dismissal during unpaid leave is not excluded. Limited protection exists only during absences due to illness, accident, pregnancy, military service, etc. More extensive protection, particularly for the entire duration of paid leave, may be provided through a collective bargaining agreement, service regulations, individual employment contract or special agreement. If this is not the case, dismissal during unpaid leave is valid in principle.
However, the formalities for ordinary dismissal must be respected. In particular, dismissal deadlines and dates must be respected. In this case, it should be borne in mind that the dismissal period only runs from the day on which the employee learns of his dismissal. If the employee is at home and receiving mail, e-mails, etc. as usual, the notice of termination has been received and is effective. If, on the other hand, the employee is away from home, for example on a trip to Asia, the notice of termination will not be received until he or she returns. It should be noted that informal dismissals by e-mail, SMS or telephone are also valid, unless the employment contract stipulates otherwise.
It is also accepted that the notice period is supposed to be used to look for a new job. Consequently, if the employee is not at home and has no opportunity to look for a new job during the current notice period, the unfair nature of the notice during his absence is accepted. For this reason, a cantonal court ruled that notice of dismissal during unpaid leave only took effect from the first working day after the unpaid leave, and that the notice period began on that date. Nonetheless, as there is no clear legal provision or federal case law on the subject, it is essential and very important to lay down concrete, demonstrable rules with the employer, expressly specifying that a dismissal can only take effect after the employee's return, and that the notice period only starts from that point.
In addition to the question of dismissal, it is important in the event of unpaid leave to know whether AHV contributions can be paid, whether pension fund benefits are maintained, whether accident and health insurance cover is provided, whether there is an entitlement to daily unemployment benefits, and whether vacations will be reduced as a result of the unpaid leave. All these questions must be specifically clarified with the contractual partner and agreed in writing for the duration of the unpaid leave.
In this particular case, the employee was traveling in Asia when he was notified of the dismissal and was unable to receive the notice. As a result, the date of receipt was set for the worker's return, and the dismissal period began on that date. The employee was therefore lucky in his misfortune. Although he received his notice of termination, he was able to continue receiving his salary during the notice period and quietly look for a new job, which he did find.
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 took a year's sabbatical, which I devoted to extensive travels in Asia. On my return, I was stunned to learn that my music school had dismissed me and that my position had already been filled during my absence. Can I object to this dismissal?
Response from Yvette Kovacs:
Many employees take a sabbatical to pursue further training or simply to rest. They assume they'll be back in their jobs when they return. The above question raised by a member shows that caution is called for in this area.
From a legal point of view, sabbatical leave is treated as unpaid leave. The employment relationship continues during the leave, but many of the rights and duties of both parties are suspended, in particular those relating to the obligation to pay wages and the obligation to work.
In the absence of other agreements, the provisions relating to dismissal are the same as if there were no unpaid leave. This means that dismissal during unpaid leave is not excluded. Limited protection exists only during absences due to illness, accident, pregnancy, military service, etc. More extensive protection, particularly for the entire duration of paid leave, may be provided through a collective bargaining agreement, service regulations, individual employment contract or special agreement. If this is not the case, dismissal during unpaid leave is valid in principle.
However, the formalities for ordinary dismissal must be respected. In particular, dismissal deadlines and dates must be respected. In this case, it should be borne in mind that the dismissal period only runs from the day on which the employee learns of his dismissal. If the employee is at home and receiving mail, e-mails, etc. as usual, the notice of termination has been received and is effective. If, on the other hand, the employee is away from home, for example on a trip to Asia, the notice of termination will not be received until he or she returns. It should be noted that informal dismissals by e-mail, SMS or telephone are also valid, unless the employment contract stipulates otherwise.
It is also accepted that the notice period is supposed to be used to look for a new job. Consequently, if the employee is not at home and has no opportunity to look for a new job during the current notice period, the unfair nature of the notice during his absence is accepted. For this reason, a cantonal court ruled that notice of dismissal during unpaid leave only took effect from the first working day after the unpaid leave, and that the notice period began on that date. Nonetheless, as there is no clear legal provision or federal case law on the subject, it is essential and very important to lay down concrete, demonstrable rules with the employer, expressly specifying that a dismissal can only take effect after the employee's return, and that the notice period only starts from that point.
In addition to the question of dismissal, it is important in the event of unpaid leave to know whether AHV contributions can be paid, whether pension fund benefits are maintained, whether accident and health insurance cover is provided, whether there is an entitlement to daily unemployment benefits, and whether vacations will be reduced as a result of the unpaid leave. All these questions must be specifically clarified with the contractual partner and agreed in writing for the duration of the unpaid leave.
In this particular case, the employee was traveling in Asia when he was notified of the dismissal and was unable to receive the notice. As a result, the date of receipt was set for the worker's return, and the dismissal period began on that date. The employee was therefore lucky in his misfortune. Although he received his notice of termination, he was able to continue receiving his salary during the notice period and quietly look for a new job, which he did find.
