Legal dispute: meaning of 'due course'

Visas, Permits, Passports and Naturalization
21
Critical bit of missing information: what reason did they give for firing you (as stated in your termination letter)?

22
As long as they have the necessary notice, and you were paid for it, I don't think you'll win this one. Whether it was a mistranslation of 'due cause' may be debatable, but with a defined notice period normal Swiss employment rules would not require this, so the ambiguity would not work in your favour.

What does your (ex) HR say the clause is supposed to mean?

23
Since (based on my superficial google research) the Dutch Cantonal formula (who knew other countries also had cantons ;-) is intended to provide severance pay (i.e. payments beyond the end of the employment, essentially a golden handshake in the case of a manager), the OP has a good argument why he or she is entitled to this compensation package in addition to the OP's salary up until the end of her emplyoment.

The only limiting factor would be if the OP was terminated for cause (and this would need to be a cause arising out of his or her conduct and not merely we are downsizing, etc.).

24
The country is divided in areas with each their own court, those areas are called kantons, nothing like here and nothing to with Provences.

25

The reason is purely that we close down the business unit in which I was working. They did not found another job in the company (though they tried, but we simply could not agree reg. a suitable job).

26

There is no termination for cause. I'm sure about that, since they offered me several other jobs and I have in general a good relation with the employer. But the employer obviously (tries to) see it as a 'due course'.

27
to me that doesn't sound like 'due cause' however, i'm sure we'll figure out what happens in due course...

28
Having worked in a cantonal court (in Switzerland, not Holland), I can tell you that I had to draft the judgment, you would not win. English speakers from common law countries tend to believe that if it is in the contract, it is binding. That is not necessarily so under Swiss law.

The contested sentence makes no sense in English and it makes no sense under Swiss law. For it to be binding, you would first have to prove why Dutch guidelines on severance pay should be applied to a Swiss contract under Swiss law which does not have any such provisions. I cannot think of anything you could come up with that would be convincing.

As has been stated, under Swiss law, the company does not have to give a reason, unless you request it, except for a summary dismissal, which is not the case here. They have a valid reason for letting you go and they have tried to find you another position, unsuccessfully. In other words, they have done their legal duty by you.

Although labour disputes under CHF 30,000 are free, that is only concerning the court costs. If you lost, you would be required to pay the attorney fees of the other party – generally significantly more expensive that the actual court costs. Again, if it were my case, I would probably argue that you should pay all the attorney fees because they share some blame for having such a stupid clause in their contract, but still you would end up paying most of their costs.

Best case scenario would be to offer them some kind of termination agreement in which you offer not to contest if they offer you, say, 1-2 months pay beyond the two month notice period. I doubt they would go for it but you never know.

29
But without some understanding of what it may mean how could you suggest that you were terminated without "due course"? Or do you actually have a meaning that you think should apply, that you've not thought to share with us here?

30

Thanks for this extensive reply. Perhaps a note reg. why this Dutch clausule: my contract 'changed' from NL to CH. Nonetheless the company tried to keep the most common "NL standard guidelines" in the contract (E.g. the amount of holidays; a % holiday allowance etc). Things which are not common in CH, but they are written in my contract. The same goes for the termination conditions: they (tried to) include these conditions according to the NL 'standards'.

31

Ah, well that does make it more interesting. It also makes the likelihood of a settlement more likely. I still suggest that you make a reasonable (based on those NL guidelines) offer in the (written) form of an Aufhebungsvertrag (termination agreement) or aussergerichtlichen Vergleich (out-of-court settlement). If they agree, great. If not, then you file with the Schlichtungsbehörde, including in your submission the rejected offer. This shows that you were willing and tried to reach a compromise and is looked on favourably by the courts.

32
But it was never a guideline for negotiations between employer and employee, it was an unofficial already dismantled guideline for judges which they could consider for when they had to rule when employer and employee could not reach an agreement and employee went to court.

However your employer does not want to pay, so either you go to court or you file for betriebung which they will object and eventually still ends up in court), in both cases you will have to explain to other people why the exact wording of the contract combined with the situation under which you got fired grants you the money.

And I agree with others that due to the poor translation you'll end up empty handed. Now if the current wording would be meaningless/nonsense and it is beyond doubt clear what actually is ment you might have a case but it's not.

33
The only part that is poorly translated is "due course" versus "due cause". However, from the context of the overall termination provision the meaning is clear. If the employer terminates the employment agreement "at will" (ie not due to any reasons arising from the employee'c conduct) severance pay is owed. Also it is not an issue to refer to documents or guidelines outside of the agreement itself. As long as there is a clear basis as to what the Dutch Cantonal formula is, this is incorporated into the contract by reference.

34
Thanks all for your input!

I will keep you updated reg. the final outcome

35
Clear as mud.

36
Perhaps it is this?

https://www.youtube.com/watch?v=iKYEUXlYcSI