I had only looked into it in the case of collective dismissal (not doing it properly) and my impression is that the stakes are really low (a few months of salary). I’m curious if you have a pointer for case law where someone was reinstated (I wonder what the bar is).
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You mean for employee? Why is that a defense? (I think only things like pregnancy, military leave are protected, and only while they’re ongoing)
At least I’ve not seen that stop an employer from firing someone, the employee would still receive insurance money but is no longer employed. (And some insurances are really a pain, as they work with really difficult doctors to do their assessments)
FYI Sicke leave and other absences from work has the rules (protection depends on tenure, starts at 1 month and max is a 6 months protection).
Yes better than nothing (it’s just I know some people who are surprised when they learn you can be fired while on sick leave, I think it’s not very common in other European countries).
May I ask what´s the area? Curious what made you feel bored
I always enjoy your contributions so much!
I did some research for my own pleasure and culture, and came across this ruling: https://publications-droit.ch/files/arrets/droitdutravail/9-22-fev-8c-635-2021.pdf
In summary:
A government employee was dismissed and challenged the dismissal. It turns out that he was right to contest the dismissal, which was deemed unjustified. As a result, the state-employer had to reinstate the employee. The employee then applied for compensation for the time spent out of work. The Court held that, even though the employee had not offered his services to the State-employer during the time of his dismissal, the State-employer, in addition to having to reinstate the employee, had to pay compensation corresponding to the time spent between the day of his dismissal and the day of his reinstatement (approximately CHF 240,000).
Once reinstatement has been ordered by a ruling that has come into force, the employee is entitled to payment of the salary that would have been due had the employment relationship never ceased. The fact that the employee was not reinstated during the cantonal proceedings does not change this. The fact that the respondent did not offer her services to the appellant after being dismissed also appears irrelevant.
In this decision, the Federal Court confirms its jurisprudence - inaugurated in decision 8C_546/2020 - according to which an employee, whose immediate dismissal has been annulled and reinstatement ordered, may claim payment of her salary for the period between her dismissal and her reinstatement. Neither the course of the procedure nor the rules on the employer’s demeure are relevant in this respect.
Unfortunately, I have not found any cases in the private sector, although the possibility of reinstatement does exist:
Few authors have considered the question of possible reinstatement in the job held until dismissal. According to Gabriel Aubert, in principle, the employee is not obliged to return to his former position; however, he may be required to accept such a proposal if there is no harm to his personality as a result, taking into account the employer’s attitude, for example, if he immediately acknowledges an obvious error and apologizes (Commentaire romand, n. 11 ad art. 337c CO). For Streiff/von Kaenel, such a return is only conceivable if the animosity provoked by the immediate dismissal has completely disappeared (Federal Court ruling 4C.321/2005 of February 27, 2006, para. 6.2).
As I understand it, the reinstatement mechanism exists in Switzerland. It seems to be more effective in the public sector than in the private sector. It may therefore be that, in the private sector, the chances of being reinstated are slim, but not impossible. So I’ll nuance my comments quoted above 
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I answer you by private message 
Wow, thanks for the research, super insightful!
After skimming the decision, it seems like most of the arguments are around the fact this was a public servant? (with specific applicable cantonal law, as well as jurisprudence from e.g. OIT about public servants)
While in private sector there’s likely no extra cantonal legislation, it’s just the standard federal stuff.
Yes, exactly, this caselaw is oriented towards the employment relationship between the State and the citizen (employment contracts between the State and the citizen are very different from those in the private sector).
If I find something in the private sector, I won’t hesitate to post it here.
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