– January 18, 2024

Is termination due to poor work performance abusive?

A termination is not abusive if it was given due to unsatisfactory work performance (BGer 4A_131/2023 of June 22, 2023).

If the employment relationship is for an indefinite period, it can be terminated at any time. This is a unilateral right of termination to which both parties are equally entitled. This is restricted by the provisions on unfair termination. Art. 336 CO contains a non-exhaustive list of cases in which termination is abusive. Abuse can arise from the motive and the manner as well as from the obvious imbalance between the interests of the parties. Abuse is particularly likely in cases where notice is given for a purely “invented” reason and the actual reason is not apparent.

If an employee is dismissed because the employer considers their performance to be unsatisfactory, this does not constitute an abusive reason for dismissal if this is consistent with the employee’s assessment, for example with the feedback received in performance reviews.

It is also irrelevant whether the employer announces the termination in advance, as this is not an obligation.

According to the case law of the Federal Supreme Court, termination due to unsatisfactory work performance is therefore not abusive if the employee was aware that the employer was dissatisfied with their performance.

If you have any questions in employment law, our lawyers will be happy to advise you.