In case of a dispute, the competent court is either the court of the domicile/headquarters of the defendant or, alternatively, those of the place where the employee usually works. The Swiss Civil Procedure Code indicates that those legal forums are mandatory, which means that an employee can’t validly agree to modify them before the dispute arises.
In that case, Swiss courts apply Swiss law.
An employment contract is deemed to be “international” (ie. not involving Switzerland only) when it contains a foreign element such as the nationality of the parties or the working place. To determine whether Swiss courts are competent or not, the following rules apply.
In case of an international dispute involving members of the Lugano Convention*, the principle is almost identical to what applies to Swiss conflicts. Indeed, the Convention provides for the same alternative forums. In other words, for Swiss courts to be competent, Switzerland has to be either the place where the employee usually works or where the domicile/headquarters of the defendant is/are located. Again, the forums are considered as mandatory; a modification only is available if made after the dispute arose or if the modification allows the employee to complain in front of other courts rather than those previously listed.
For example, if a Swiss employer wants to sue one of his/her cross-border workers, he/she must be aware that this can only be done at the worker’s domicile (ie. outside Switzerland).
In case of an international dispute not involving members of the Lugano Convention, rules are also similar. The specificity is that, in case of a complaint emanating from the employee, the action can additionally be undertaken in front of the courts of his/her domicile/habitual residency. This forum is not mandatory.
In case the dispute arises in an international employment framework, the law of the State where the employee usually works applies. If the employee usually performs his work in several States, the applicable law is the one of the country where the employer’s establishment is located. If such establishment doesn’t exist, the law of the place where he/she resides applies. Parties are allowed to select the applicable law among the following: the one of the State where the employee has his/her habitual residency or the one of the State where the employer has its establishment, domicile or habitual residency.