Age-based Termination before the Federal Supreme Court: Chef vs. CEO

"Freedom of dismissal in Switzerland is a highly valued principle – but it must not be abused for the legal exclusion of long-serving older employees."

The Swiss labor market is deeply rooted in the principle of freedom of dismissal: fundamentally, anyone wishing to terminate an employment contract does not need an objective reason. However, to protect older, long-serving employees, the Federal Supreme Court has developed the doctrine of "heightened duty of care". Yet an analysis of recent case law reveals that protection against abusive age-based dismissal in Switzerland is a matter of hierarchy and income.

The Heightened Duty of Care: What the Law Actually Requires

Under Article 328 of the Swiss Code of Obligations (CO), employers are obligated to respect and protect the employee's personality rights. From this, the Federal Supreme Court derives that older employees (in practice usually from age 58 to 60) with long service records (more than 10 years) enjoy special protection.

If an employer gives notice to such an employee, they must proceed with due care. They must:

1. Inform the employee of the intention to terminate in good time.
2. Grant them a hearing and discuss the situation.
3. Actively seek socially acceptable alternatives (e.g., continued employment at reduced working hours or in another role).

If this is omitted, the dismissal is considered abusive (Art. 336 CO), which can result in compensation penalties of up to six months' salary. In practice, however, Swiss employment law operates as a two-tier system.

Case 1: The Chef and the Protection of the Base Segment (Ruling 4A_117/2023)

An impressive example of protection for the base segment is provided by Federal Supreme Court Ruling 4A_117/2023 from May 2023.

A 64-year-old chef who had been employed at the same restaurant for around 30 years (most recently as deputy head chef) suffered a severe knee condition. Eleven months before his regular retirement, his employer dismissed him. The employer cynically argued that the termination was in the chef's best interest so that he could claim daily sickness benefits and unemployment benefits instead of suffering a reduction in pay.

The Federal Supreme Court rejected this argument and ordered the employer to pay penalty compensation of 4.5 months' salary for abusive dismissal. The employer had breached the heightened duty of care by failing to inform the chef in advance, hear him, or look for alternative duties in the kitchen. This ruling shows that the base segment is well protected against procedural errors.

Case 2: The CEO and the Softening for High Earners (Ruling 4A_44/2021)

In stark contrast stands Ruling 4A_44/2021. This case involved a 60-year-old CEO who had worked for an incredible 37 years at the same company and was suddenly dismissed. His salary was around CHF 230,000.

The lower court had ruled the dismissal abusive due to his age and extremely long tenure. However, the Federal Supreme Court overturned the decision and declared the dismissal entirely lawful.

The judges' reasoning is telling:

• In the case of a CEO with broad decision-making authority, the employer's interest in freedom of dismissal carries greater weight.
• Continued employment in a subordinate role is in practice "simply not workable" for an executive.
• A duty to provide prior warning or a hearing was explicitly rejected for this management level.

The Unvarnished Reality: A Class Society in Court

Comparing these two cases reveals a painful truth: While a 63-year-old tradesperson or chef is protected by the duty to be granted a hearing and prior warning, a 61-year-old department head, authorized signatory, or managing director is on extremely thin ice legally. Above a certain salary and hierarchy level, the employer's duty of care is deemed "not workable" in court.

This forces older professionals into a defensive position. Anyone dismissed at an advanced age statistically faces twice the difficulty in finding a new job in the Swiss market. The average search duration increases from 140 to over 200 days. Many end up exhausting their unemployment benefits.

PARAT: Independence Instead of Supplication

The takeaway from this legal reality is clear: one cannot blindly rely on statutory protection against dismissal. True security comes only from one's own employability and independence.

PARAT was designed specifically for this:

• To help older professionals structure their decades of experience in a modern, ATS-friendly CV design.
• To reduce the administrative stress of job hunting to a minimum through integrated tracking and one-click exports.
• To keep control over one's own career path – regardless of whether one is a chef, tradesperson, or CEO.

Update your application documents and retain full control over your professional future with the PARAT CV Wizard.

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