Soon fired for underperformance

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1

hi there

probably not the most adequate forum to post these kind of questions, but I’ll give a try…

I am expecting to be fired for underperformance next week and this is clearly a case of unfair dismissal. The company is badly impacted by the COVID-19; I am on short-time work.

Did anyone here experience that kind of situation, before or during COVID-19? what were the pre-signs, was arrangement did you agree upon with your employer, what were your ressources to fight, mistakes you or your company did etc?

thanks a lot! :expressionless:

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First of all, I hope you will get through this. My best wishes :+1:
Sadly I have no personal experience with being fired unfairly. Especially not in Switzerland.
Would be very interesting to here from mustachians who had a few years more experience in this topic. Maybe someone from HR who wants to share a secret or two :laughing:

@babyjag
You should give more info about your situation so that others can help you. What is your industry? What is your work expirience and education level. Are all people in your group fired, or just you, etc…

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Sorry to hear about that.

I really don’t know what your recourse would be, my impression was that Switzerland was one of the least employee friendly countries in Europe.
Did you check your work contract? I thought most contract were at will anyway and either parties can walk out in 1-3 months usually. In which case unless there is discrimination, there’s probably not much that can be done.

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Hi babyjag,

Sorry to hear the news. I haven’t been in these shoes before, so my advice can only be very broad and doesn’t necessarily apply to your situation.

If you have legal insurance, now would be the time to call them and ask for guidance.

If you don’t, I’d wait and see what I’m told. If they fire you under your normal contract terms, then there’s not much you can do but you should be able to get a fair letter of reference and be able to gather unemployment benefits right away (do go and see it first thing if/once you’ve learned the news, they have specific conditions that apply right after the start of unemployment that can result in delays and/or penalties if you don’t tackle them right away).

They can fire you and tell you not to come back to work but if they do, that means that they are willfully giving up on your services but must keep paying you until the normal term of your contract (usually 2-3 months).

You’ll have to refer to your contract to see what happens with potential bonuses. They’re usually taken out and can’t be claimed if HR is half-decent. Edit: unless they fire you with cause (see below), the 13th salary, if you have one, should still be due “pro rata temporis”.

If they try to fire you with cause, meaning they fire you on the spot, without anymore pay, which means penalties regarding unemployment benefits and a potential blow in your career (the business world is a pretty small one where everybody knows everybody), then I’d go and see the Ombudsman/Prud’homme, which is the person dedicated to handle conflicts between employer and employee. While he’s fair and neutral, the purpose of his job is to offer protection to the weaker party, i.e. you. I’d let your employer know this is your next stop when/if they mention firing you with cause. They may want to avoid the trouble and potential legal costs and be willing to terminate your employment in the regular way.

If things escalate and there’s enough money on the table to make it worth it, you may want to take counsel from an attorney. The Ombudsman/Prud’homme should be able to give you advice regarding this step.

Things may vary depending on the conditions of your employment (Swiss person, B or C permit, …) but the bottom line of the Arbeitsgesetz/Loi sur le Travail is to protect employees so there is a legal groundwork to back you up (even though, as nabalzbhf states it, there’s not much that can be done if they fire you under the terms of the law and your contract).

Keep heart and get your network to work.

Edit: addition and typo (sorry nabalzbhf).

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Sorry to hear about your problem. I thought that as long as you are on “Kurzarbeit”, the company is not allowed to fire you? But honestly, does it make sense to fight and force a company to pay you money for work that they don’t need? There is clearly no long-term potential in this kind of relationship.

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dear @Sparta, @nabalzbhf, @Wolverine @Bojack

thank you so much for your help! I cannot give much elements for now, but in a nutshell:

COVID-19 is very badly impacting the business
our team was asked to be on short-time work until at least May (maybe longer), but between the lines we were asked to work more - anyway the workload and pressure increased for us
my manager, who was satisfied with my performance, suddenly started to be tougher and even rude, telling me that I do not deliver enough. However she is asking me to work on small projects or projects where not much can be done. In absolute value my figures are low, but overall in % I really perform.
Lately barely any communication from her and of course, everything rather done orally, no email. A lot of contradictory or confusing information.

My opinion: I know about people fired for underperformance/reorg over the last few weeks/months, here and there. I believe the company wants to avoid/reduce the number of people to be fired through a costly social plan, so they push people to quit from themselves or fire them.

I openly told my boss that I sensed something changed and told her that she shall be open with me; she kept quiet (she’s usually not very straight forward and very political anyway…)

No consequence management process was introduced for me as everything is communicated orally; might be done next week, unless I am fired immediately.

my actions so far:
I started to document our (few) conversations / emails as evidence.
The unions told me that being fired for underperformance is the worst situation for an employee, difficult to fight or to negotiate a package
Another person in the team has a similar experience
I will call my legal insurance

How to prepare myself at best?
if my boss wants me out there is no point for me to insist, so my objective is to get out with the best conditions (package) and a fair Zeugnis.
I try not to take it personally as I believe the instructions come from the top. But damn it, it really hurts…

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I believe that is the best approach. If you sense something is going on, discuss it openly with your direct supervisor. If you don’t burn that bridge, they might give you a good recommendation.

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(sorry for the side track)

Uh, how can you be working more if you’re on kurzarbeit? Isn’t that a fraud? (When it was setup it was pretty clear it’s only allowed when employee can prove they do reduced hours, would you ask you to lie?)

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Does your company have employee representation? Is there any way they could be helpful (at least figuring out what is going on company wide).

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Yes, I am already in contact with the unions

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that will be one of my arguments, indeed

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Given it’s not the first case I heard (place where they put people on kurzarbeit but ask them to work at 100%, which gets them a workforce largely paid by the state/our taxes), I really hope they’ll do some audits and some companies will get some large fine…

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Edit: I’ve clicked the wrong message to answer to and Yanikuza, below, has covered everything way better than I ever could so what still made sense in this message is below and I’ve deleted the rest.

Take care.

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Hello @babyjag,

The first thing to know when an employer terminates a worker’s employment contract is to ask for the reason. Indeed, while the termination letter may not contain a reason, the employee has the right to ask for the reason and the employer must have a reason, otherwise it is considered an unfair termination liable to compensation up to 6-months’ salary :wink:

Secondly, if your current employer dismisses or has dismissed several employees in a very short period of time, this may be to avoid having to follow the procedure for unfair dismissal, but circumventing it is also a reason for unfair termination, so if you want to alert the authorities in your canton to this practice, you are entitled to do so and your employer will also owe you and your former colleagues compensation :wink:

Finally, concerning your current situation: an employer has the right to terminate an employee’s employment contract at any time within the statutory or contractual leave period. If your contract provides for a leave period of 3 months or more, then your employer will be obliged to pay you your salary for the duration of your leave period. He will also have to compensate you for your paid leave that could not be taken.

The reason given, i.e. poor performance, must be discussed between you and your employer to get more details and to define whether or not the reason is legitimate. In any case, he may very well fire you for another reason, such as an economic reason related to the company’s situation, particularly because of COVID-19.

I strongly suggest you to contact your legal insurance and continue to talk with your employer to find an arrangement, for example, less hours of work to maintain the contract or for the termination of your contract like for exemple, an indemnity leave in addition of your salary.

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In addition to Yanikuza’s excellent advice, I’d also make sure to prioritize my mental health. You seem to be going through a very stressful situation and you want to be ready for the job hunt that is likely to come next, as well as being available and in a good mental space for your loved ones.

Take heart and stay safe.

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@Wolverine To be very open I wanted to quit but a pandemic came in… I am looking for a job and got few interviews which is promising, but nothing concrete so far.
For my mental health I have an appointment with a specialist who is used to these kind of situations. Thank you !

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Thank you so much @Yanikuza for your excellent advises.

I will keep you informed :blush:

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So why are you crying ? Tu veux le beurre et l’argent du beurre ?

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Maybe because it isn’t a respectful and ethical way to treat its employees, especially when they perform ?

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To me this is a clear case of systematic mobbing in order to get people leaving the company and this shall be dealt with the help of unions. Unfortunately in the service sector few employees are member of an union and it is probably here it can be the very useful.
I must admit I am in a similar situation not within a private company but within an institute held by the swiss government. The story went slowly up the last four years (yes, we are slow at the swiss government) and recently there has been very high pressure that I should resign from my actual position due to my “health situation”. After two sessions of this kind a delegate of the union took contact with the head of HR. A session is schedule in few days but since the contact with the union was made the way the people behave already changed a lot. People can be quite mean and nasty in the offices of the government but fortunately they do not have a lot of courage.

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