In case a working relationship lasted 3 months or more (or has been concluded for such a period) and if the employee is, through no fault of his own, unable to perform due to causes inherent to his/her person, such as an accident, illness, pregnancy, or the accomplishment of a public function/legal obligation (eg. military service or even the duty to provide for the needs of a sick dependent child), the basic regime applies (in case the contract doesn’t provide any other information ; 324a CO).
The amount covers all causes of impeachment occurring at the same time (ATF 124 V 291, August 5th 1998).
This means that the employer shall pay the employee’s salary for a certain period depending on how long the working relationship lasted. This period is based on the “échelle de Berne” in french speaking cantons and is of :
• 3 weeks during the first year of employment;
• one month during the second year of employment;
• two months during the third and fourth years of employment;
• 3 months from the fifth to the ninth year of employment;
• four months from the tenth to the fourteenth year of employment;
• five months from the fifteenth to the nineteenth year of employment;
• six months from the twentieth to the twenty-fourth year of employment;
• an extra month every five years.
Alternatively, the employer may conclude, as it is very often the case, an insurance for maintaining salary payments, as long as such a solution is at least as beneficial to the employee as the statutory rules previously described.
To be considered as equivalent to the statutory provisions, such insurance should cover at least 80% of the employee’s salary during a period of 720 days, whereby no payment is owed for the first three days of an illness. Under these conditions, the employer must pay at least half of the insurance premiums.
If your employer doesn’t pay you the due amount, you can provide him/her a formal notice by suspending your work performance in order to push him/her to react.
This path can be taken in situations where your employer refuses your performance, precludes you to accomplish it by not making available key working tools (and also in cases of non-respect of his duty of care regarding the employee s’ health and security). This can be done even if your employer is not at fault since he/she has to entirely undertake the economic and commercial risks of his/her activity.
The notice should be sent by registered mail, for evidences matters. You should also clearly indicate your ability to perform as soon as your salary will be paid; to avoid being accused of abandoning your position.
