In judgement BGer 4A_50/2023 of 5 February 2024, the Federal Supreme Court dealt with the following case:
The employee concerned was transferred to another location to carry out her work. As she did not want this, she requested the issue of an interim reference and, in consultation with the employer, prepared a draft of the said reference. This draft was signed by an unauthorised signatory without the management being informed.
When the managing director found out about this by chance, he dismissed both the employee and the person responsible without notice on the same day. In addition to wage claims, the employee demanded that a reference be issued with the wording she had pre-formulated in the complaint.
With regard to the reference, the employer argued that the employee was not permitted to propose a wording in the action she brought for the issue of the reference because it was not an action for amendment.
The handling of an action for the issue of an employment reference for an employee who has not yet received an employment reference was controversial in the doctrine until this judgement.
Some scholars took the view that a two-stage procedure should be followed: Firstly, an action for the issue of a reference must be filed and, if the content of the reference does not reflect the expectations, an action for rectification must be filed in a second step. Another part of the doctrine is based on the approach that employees who do not yet have a reference can simultaneously demand the issue of the reference and determine its content by means of an action.
The Federal Supreme Court has now clarified that it is permissible to directly claim the desired wording in an action for the issue of an employment reference. This makes sense insofar as it avoids subsequent proceedings for rectification.
If you have any questions on the subject of employment law, our lawyers will be happy to assist you.