Page 50 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM SWITZERLAND
DUTY OF CARE OWNED
BY COMPANIES IN IN SWITZERLAND
TO ITS OVERSEAS OR OR OR TRAVELLING WORKFORCE
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DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS •
First and foremost it has to be said that deciding which law is is applicable to a a a a a a work relationship is is not easy especially in international situations The parties to an an agreement – i i e e e e e e e e e e e the the employer and the the worker – may agree on on on on certain certain conditions to apply certain certain national rules Where the parties have made no decision Swiss law provides that in in in principle the the the the law law that applies is the the the the law law of the the the the State in in in which the the the the worker habitually carries out the work work in question In any case it should be pointed out that foreign law can never be applied if it would produce an outcome that is absolutely incompatible with the Swiss legal system I I THE APPROPRIATE COURT
Generally speaking the Swiss courts will claim jurisdiction in in legal actions taken in the the the place place of the the the defendant’s domicile or the the the place place where the worker’s tasks are usually performed II AN EMPLOYER’S OBLIGATIONS ARISING FROM THE DUTY OF CARE In Switzerland employment law law law is made up of of a a a a a a a a a a a a set of of rules from private law law law and and public law law law When dealing with any particular case all these rules must be examined With cases relating to work outside Switzerland extra care must be taken when examining the the duties of of of an employer By virtue of of of of of Article 328 of of of of of the the the Swiss Swiss Code of of of of of Obligations (CO RS 220) which is is is the the main point of of of of reference in in in Swiss Swiss law an employer’s overall duties are as follows:
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duty of information •
duty of prevention •
duty of monitoring/ensuring the rules are followed •
duty of intervention How an an employer intervenes and how strongly will depend on on a a a a a a a range of factors (the organisation’s aims the the employee’s ability and experience the the the work environments the the the knowledge of the the the organisation and the the the other enterprises involved in in the the the same sector) and will have to be judged against the principle of proportionality Thus the the the the the higher the the the the the risks for the the the the the employee the the the the the more the the the the the employer’s intervention will need to be resolute and determined perhaps
even intrusive for the the employee who will have to comply with their employer’s instructions Generally speaking it must be assumed obviously that an employer does not have responsibility for an employee’s spouse or or children There are situations however in which an employer must act on on their behalf especially in in in sensitive international settings where the the physical or or mental wellbeing of the the spouse or or children might be jeopardised Most probably this will also apply to any other partner the the employee lives with Among the risks employers are are often not aware of of and which deserve mention are their responsibility for travelling employees and the the the application – – albeit partial – – of of the the the duty of of care after the the the work relationship has ended Where they have failed in their duty of care employers and their representatives – especially decision- making bodies – must face various penalties In civil cases this will mainly entail making reparation for the damage and intangible harm caused Penalties may also be imposed not just by the administrative authorities but also under the criminal prosecution system and in in fact after accidents incidents or even harassment it it is not uncommon to see the prosecution authorities conducting enquiries that can lead to criminal penalties III THE EMPLOYER’S RIGHTS
The main article dealing with the rights of an employer in in in Switzerland is Article Article 321a CO the counterpart to Article Article 328 CO its mirror image Workers must carry out the the work entrusted to them with care and must loyally safeguard the employer’s interests This duty of diligence like the employer’s duty of care can and must be speci ed in in in in in the the contract taking into account the the professional risk training technical know-how the the job in question the the level of responsibility and the the objectives stated in the the contract Depending on the the circumstances employees are themselves bound to to comply with the measures to to ensure greater safety and reduce risk in in the same way as with precautions on on building sites Failure to to comply with these measures may force an employer to to impose sanctions up to and including dismissal with immediate e e ect (Art 337 CO)