Capitulo III. La Universidad de Guadalajara
3.3. Algunos aspectos relevantes sobre la educación virtual en la
3.3.3. La Universidad de Guadalajara y la Educación en modalidades educativas
1. GENERAL PROTECTION 285
2. SPECIAL CONSIDERATIONS 286
2.1 Discrimination 286
2.2 Age 286
2.3 Length of service and fixed-term contracts 286
2.4 Part-time work and career breaks 286
2.5 Pregnancy and child care 286
2.6 Carers 287
2.7 Employee representatives 287
2.8 Redundancy 287
2.9 Other 287
3. RESIGNATION 287
4. AVOIDING UNFAIR DISMISSAL 288
4.1 Grounds for dismissal 288
4.2 Permissions 288
4.3 Procedures 288
4.4 Notification/consultation obligations 289
4.5 Duration of notice period 290
4.6 Treatment during notice period 290
4.7 Payment in lieu of notice 291
4.8 Other 291
5. CIRCUMSTANCES IN WHICH DISMISSAL WITHOUT NOTICE IS PERMITTED 291
6. SANCTIONS AND ENFORCEMENT 291
6.1 Sanctions for unlawful dismissal 291
6.2 Void dismissals 292
6.3 Reinstatement 292
1. GENERAL PROTECTION
In Switzerland, protection against dismissal is mainly derived from Articles 334 to 340(c) of the Swiss Code of Obligations (the ‘CO’).
Additional provisions protecting employees against dismissal can be found in other Acts, such as the Federal Act on the Equal Treatment of Women and Men (the ‘ETA’).
Under Swiss law, all employees are protected equally against dismissal at an improper time, unfair notice of termination and unjustified dismissal without notice (see section 5 below).
There are no specific protected classes of individuals, as the provisions of the CO are generally applicable to all contractual relationships between employer and employee.
Generally, a notice of termination may be deemed unfair if it is given for one of the following reasons.
An inherent characteristic of the employee (such as age, race or sex), unless such characteristic relates to the employment or negatively impacts on
• The employee exercises a constitutional right, unless the exercise of such right violates a duty of the employment relationship or significantly impairs co-operation within the enterprise.
• The employee asserts, in good faith, his or her rights arising from the employment relationship (in which case a notice of termination would be considered an act of retaliation), or the employer seeks to frustrate the enforcement of claims of the employee deriving from the employment contract.
• The employee performs compulsory military or civil service.
• The employee is a member of an employees’ association, or refuses to be a member of such an association, or the employee lawfully performs a union activity.
• The employer fails to comply with its consultation obligations in connection with a mass dismissal.
Further, the employer is by law restricted from giving notice of termination during certain time periods. The relevant ‘restricted periods’ are as follows:
• during an employee’s pregnancy and for the first 16 weeks following childbirth
Individual Dismissals Across Europe - SWITZERLAND
2.6 Carers
There is no specific protection for carers beyond the general principles set out in section 1 above.
2.7 Employee representatives
As mentioned in section 1 above, generally, notice of termination may be deemed unfair if it is given because the employee is a member of an employees’ association, or refuses to be a member of such an association, or the employee lawfully exercises a union activity. There is no specific protection beyond this general principle.
2.8 Redundancy
A notice of termination constitutes a collective dismissal if it is given by the employer for economic reasons (i.e. reasons unrelated to the personal attributes of the employees) within a period of 30 days and it affects a certain minimum number of employees in proportion to the total number (of employees):
Total number of employees Number of employees to be dismissed
More than 20 but fewer than 100 10 or more
More than 100 but fewer than 300 10% or more
300 or more 30 or more
2.9 Other
There are no specific protected classes of individuals, as the provisions of the CO are generally applicable to all contractual relationships between employer and employee.
As mentioned in section 1 above, a notice of termination may be deemed unfair if it is given because the employee performs compulsory military or civil service.
3. RESIGNATION
An employee can lawfully resign by giving notice at any time, effective as per the expiry of the notice period.
There is no concept of ‘constructive dismissal’ under Swiss employment law. The termination of employment must be express and is typically made in writing. It is, however, possible to terminate the employment contract and at the same time offer new employment with modified terms and conditions.
Individual Dismissals Across Europe - SWITZERLAND
• during the time an employee is prevented from working by reason of illness or accident (i.e. a period of 30 days in the first year of service; 90 days from the second to the fifth year of service inclusive; and 180 days as from the sixth year of service)
• during compulsory military or civil defence service of more than 11 days, and for four weeks prior to and following such service.
2. SPECIAL CONSIDERATIONS 2.1 Discrimination
As mentioned above, generally, notice of termination may be deemed unfair if it is given for qualities inherent in the other party’s personality (such as age, race, gender or origin), unless such characteristics relate to the employment or significantly impair co-operation within the organisation. Further, the ETA provides for specific protection against dismissals based on gender.
2.2 Age
Generally, employees are protected against dismissal by reason of an inherent characteristic of the employee (such as age, race or sex), unless such characteristic relates to the employment or negatively impacts on co-operation on an operational level. There is no specific protection beyond this general principle.
2.3 Length of service and fixed-term contracts
Unless otherwise agreed in writing, the first month of a permanent employment contract is considered as the trial period.
During the trial period, the employment relationship may be terminated at any time with seven days’ notice, although the parties may agree in writing on a different notice period.
2.4 Part-time work and career breaks
There is no specific protection beyond the general principles set out in section 1 above.
2.5 Pregnancy and child care
As mentioned above, a female employee is protected against dismissal during the ‘restricted period’, which is during pregnancy and for 16 weeks following the birth. There is no specific protection beyond this general principle.
employees are to be dismissed in the event of a collective dismissal. Furthermore, there is a general right for employees to be treated equally, especially in the event of collective dismissals. Selection criteria such as gender, race, nationality and ethnic origin are not admissible and violate the principle of equal treatment.
Generally accepted criteria used to determine which employees are to be dismissed are, for example, those in relation to the performance of the employee or the organisation.
The employer’s notice of termination of the employment relationship is unfair if it is given in connection with a collective dismissal without prior consultation with the works council or the employees themselves. An employer that gives unfair notice in the context of a collective dismissal must pay compensation of up to two months’ salary per employee.
An employment agreement can end 30 days at the earliest after notification of the intended collective dismissal (after completion of the consultation period) to the cantonal labour office. Consequently, if this notification is not carried out correctly, a notice of termination is unlawful.
4.4 Notification/consultation obligations
No notification/consultation obligations are required for individual dismissals. With regard to collective dismissals, if the employer envisages a collective dismissal, it must consult with the works council or, if one does not exist, all employees.
The consultation period begins with notification by means of the information letter described in section 4.3 above. During this period, the works council or the employees themselves must have the opportunity to make suggestions on how to avoid the redundancies, limit the number of redundancies and alleviate their consequences. Although the employer is not obliged to follow any of the suggestions put forward, it does not comply with its consultation obligations if the final decision to dismiss the employees was taken prior to the conclusion of the consultation period.
Swiss law does not stipulate a minimum duration for the consultation period. By a recent decision of the Swiss Federal Supreme Court, five calendar days are deemed not to be sufficient. In practice, a consultation period of between one and three calendar weeks is regarded as sufficient.
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289
4. AVOIDING UNFAIR DISMISSAL 4.1 Grounds for dismissal
In principle, provided that the relevant statutory or contractual notice period is complied with, the employer does not need to invoke a particular reason to terminate an employment relationship. However, the employee is protected against termination at an improper time and against unfair termination. Further protection is granted under the ETA (see sections 4.5 and 6.3 below).
4.2 Permissions
No permissions are required for individual dismissals.
4.3 Procedures
Although not required by law for individual dismissals, it is recommended that the employer gives notice of termination in writing. Individual employment agreements, collective bargaining agreements and company rules may also stipulate that notice must be given in writing. The manner of giving notice of termination must not violate the employee’s personal rights. The employer must inform the employee of certain social security issues related to the termination of employment. Except for collective dismissals, no governmental agency or trade union board need be involved.
In relation to a collective dismissal, if the thresholds are reached, the following procedure applies:
• As a first step, the employer must provide the necessary information in writing to the employee’s representative body (i.e. the works council) or, if one does not exist, all employees. The information letter must contain details on:
- the reasons for the collective dismissal
- the number of employees to be made redundant - the number of employees usually employed
- the time period within which notification of the redundancies is to be given.
The employer must send a copy of the information letter to the relevant labour office.
• The employer must then have a consultation with the works council or the employees (see section 4.4 below).
• Only after execution of the notification requirements can the employer terminate the employment relationships by giving notice to the employees to be made redundant. However, the restrictions described in section 4.1 above (protection against termination at an improper time and unfair termination) must be taken into account when determining which
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4.7 Payment in lieu of notice
The employer must pay the employee’s salary and keep the employee insured for the entire notice period, even if it releases the employee from rendering services to the organisation.
4.8 Other
Upon the request of the employee, an employer must provide the reasons for a dismissal in writing.
5. CIRCUMSTANCES IN WHICH DISMISSAL WITHOUT NOTICE IS PERMITTED
For lawful reasons, both the employee and the employer may terminate an employment relationship without notice at any time, with immediate effect. The employment contract may also be terminated with immediate effect after (ordinary) notice of termination has already been given. A lawful reason is considered to be, in particular, any circumstances under which the terminating party cannot in good faith be expected to continue the employment relationship. It is for the court to decide whether a lawful reason has been given. Unanimous legal commentary and case law indicate that only a serious breach that destroys mutual trust may be considered as a lawful reason (for legal consequences, see section 6 below).
6. SANCTIONS AND ENFORCEMENT 6.1 Sanctions for unlawful dismissal
Unfair notice of termination
Unlike notice given by the employer during a restricted period, in principle, unfair notice of termination is lawful. However, the party that unfairly gives notice of termination must pay a penalty to the other party. The amount of the penalty is determined by the court and must not exceed an amount equal to the employee's wages for six months (or two months in the case of unfair notice of termination in connection with a collective dismissal).
Unjustified dismissal without notice
If the employer terminates the employment contract with immediate effect without lawful reason (‘unjustified dismissal’), the employee can bring a claim for compensation equivalent to that which he or she would have earned if the employment relationship had been terminated by observing the relevant notice period or until the expiry of the specified term of employment. Furthermore, the judge can order the employer to pay the employee a penalty of up to six months’ salary.
Individual Dismissals Across Europe - SWITZERLAND
If the consultation with the works council or the employees themselves does not result in a substantial reduction in the number of dismissals, after completion of the consultation period the employer must notify the relevant labour office in writing of all the intended redundancies as a result of a planned collective dismissal. This notification to the labour office must include the results of the consultation with the works council or the employees and a copy of this notification must also be sent to the works council or the employees.
4.5 Duration of notice period
Unless otherwise stipulated by written agreement in the contract, the notice period is one month during the first year of service, two months from the second to the end of the ninth year of service and three months thereafter. The employment contract can contain the optional provision that the termination date is at the end of a month. A minimum notice period of one month may only be reduced by a collective employment agreement and only in relation to the first year of service. As a general rule, the notice periods for the employer and the employee must not differ.
Length of service Statutory notice period
1 year 1 month
Between 2 and 9 years 2 months
More than 9 years 3 months
Unlike notice given by the employer during a restricted period (see section 1 above), unfair notice of termination is lawful. The term of the employment relationship is not influenced by unfair notice of termination.
An employee can challenge notice of termination given by the employer by initiating proceedings under the ETA, unless the employer can prove lawful grounds for the termination. The employee may ask to be provisionally reinstated for the duration of the proceedings. Alternatively, the employee may claim compensation under the provisions relating to unfair notice of termination (see section 6 below).
4.6 Treatment during notice period
Except in the case of immediate termination for lawful reasons, the employer must comply with the notice period required by law or agreed in the individual employment contract. In principle, the employer can release the employee from his or her contractual obligations with immediate effect (gardening leave). However, it must still pay the employee’s full salary for the whole notice period. The employment relationship continues until the relevant notice period has lapsed.
Severance pay
Under Swiss law, the employer is not required to make a severance payment in the event of dismissal. Although a provision exists under which employees over the age of 50 and with at least 20 years’ service are entitled to severance pay, this provision is not particularly important in practice because it is substituted by benefits granted by the (mandatory) company pension plan. However, severance pay may be stipulated in an individual or collective employment agreement.
6.2 Void dismissals
Notice of termination given by the employer during a restricted period is void and must be given again once the restricted period has expired. An employee's absence because of a serious illness may continue, but once the restricted period has expired, the employer may lawfully give notice.
If notice of termination is given a restricted period commences, and if the notice period has not yet expired, the expiry of the notice period is suspended and continues only after the restricted period ends.
6.3 Reinstatement
Swiss law does not require the employer to reinstate a dismissed employee. However, under the ETA, during complaint procedures the employee may ask to be provisionally reinstated for the duration of the proceedings.
7. WAIVER OF RIGHT TO SUE
During the course of the employment relationship and for one month after it terminates, the employee cannot waive any claims resulting from the mandatory provisions of law or a collective employment agreement. For example, the employee cannot waive the right to bring a claim for payment of agreed compensation for any overtime that he or she has already worked. However, an employment contract may be terminated at any time by mutual agreement between the employee and the employer by stipulating that a final payment is made to the employee. In practice, termination by mutual agreement is frequently used to settle outstanding issues after notice has been given. An agreement to make a final payment is permissible if, at a minimum, it includes payments resulting from the mandatory provisions of law or a collective employment agreement.
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Turkey
1. GENERAL PROTECTION 297
2. SPECIAL CONSIDERATIONS 297
2.1 Discrimination 297
2.2 Age 298
2.3 Length of service and fixed-term contracts 298
2.4 Part-time work and career breaks 298
2.5 Pregnancy and child care 298
2.6 Carers 299
2.7 Employee representatives 299
2.8 Redundancy 299
2.9 Other 299
3. RESIGNATION 299
4. AVOIDING UNFAIR DISMISSAL 299
4.1 Grounds for dismissal 299
4.2 Permissions 300
4.3 Procedures 300
4.4 Notification/consultation obligations 300
4.5 Duration of notice period 300
4.6 Treatment during notice period 301
4.7 Payment in lieu of notice 301
4.8 Other 301
5. CIRCUMSTANCES IN WHICH DISMISSAL WITHOUT NOTICE IS PERMITTED 302
6. SANCTIONS AND ENFORCEMENT 305
6.1 Sanctions for unlawful dismissal 305
6.2 Void dismissals 305
6.3 Reinstatement 306
1. GENERAL PROTECTION
Protection against dismissal comes from Article 49 (the right and duty to work) of the Turkish Constitution and Article 18 of the Labour Law.
An employer must provide a ‘lawful’ or ‘justified’ reason to dismiss employees who are entitled to job security. Yet even for employees not entitled to job security, the employer should not dismiss them in bad faith. If it does so, the employees can bring a claim against it for termination in bad faith.
By Article 18 of the Labour Law, if the employer has more than 30 employees globally, its employees benefit from job security if they:
• have been in an employment relationship with the organisation for more than six months
• are working under a permanent employment contract
• are not considered to be an ‘employer representative’ who is authorised to manage the entire organisation (e.g. a general manager) or his or her assistant
• are not an employer representative’s assistant who is authorised to manage the entire workplace and to recruit/terminate employees.
In addition to the above criteria, when dismissing an employee who is entitled to job security the employer only needs to consider those matters relating to whether the termination is lawfully established based on ‘justified’ or ‘lawful’ grounds. Under the Labour Law, there are generally no additional considerations such as age or length of service that the employer must adhere to for individual dismissals.
2. SPECIAL CONSIDERATIONS 2.1 Discrimination
According to Article 48 of the Constitution, each individual has the freedom and the right to work in the field of his or her choice.
In addition, the Labour Law and the Constitution prohibit an employer from