Missbräuchliche Kündigung: Abusive Dismissal Under Swiss Law

Someone moving to Switzerland from Germany or Austria often assumes their new job comes with the same kind of dismissal protection they left behind. Swiss law works differently, and getting this wrong can cost a real legal claim.

An employer can end an open ended Swiss employment contract for almost any reason, or none at all, as long as proper notice is given. What Swiss law regulates is not the reason for ordinary dismissals, but a specific, listed set of abusive motives under Art. 336 OR, along with strict deadlines under Art. 336b OR that decide whether a wronged employee can do anything about it at all.

It is part of our wider Swiss employment law coverage, itself part of the broader guide to Swiss law.

Information last verified on 21 July 2026. This page provides general legal information about Swiss law and does not constitute legal advice in an individual case.

Termination without cause is legal in Switzerland

Swiss employment law starts from a principle of Kündigungsfreiheit, freedom to terminate. Either party to an open ended employment contract may end it by giving proper notice, without stating any reason at all, and without needing anything resembling the good cause standard familiar from German or Austrian dismissal protection law.

This surprises many readers coming from a German or Austrian background, where an employer generally needs a socially justified reason to dismiss someone once minimum service thresholds are met. Switzerland has no equivalent general requirement. What Swiss law regulates instead is a specific, listed set of bad motives, addressed in Art. 336 OR.

Art. 336 OR: a list of abuses, not a good cause requirement

Art. 336 OR does not ask whether a dismissal was fair, reasonable, or well justified. It asks only whether the party giving notice did so for one of the specific motives the article lists. Everything outside that list remains a lawful exercise of Kündigungsfreiheit, however harsh it may feel to the person let go.

Abs. 1 covers motives available to either party. These include dismissing someone for a personal trait connected to their personality, for exercising a constitutional right, purely to prevent them from acquiring a claim arising from the employment, or because they asserted an employment related claim in good faith. It also covers dismissing someone for performing Swiss military, civil protection, or civilian service, or for fulfilling an involuntary statutory duty.

Abs. 2 adds motives available only to the employer. These include dismissing someone for belonging to, or refusing to belong to, an employee association, dismissing an elected staff representative without a justified reason during their term, and dismissing employees in a mass layoff without first consulting the workforce or its representatives, a step Swiss law otherwise requires.

The list is not the last word on abuse. The Federal Supreme Court has recognized further abuse patterns through the employer’s separate duty of care toward employees under Art. 328 OR. In BGE 132 III 115, the court held that dismissing a long serving employee, in that case after 44 years without complaint and only months before retirement, with no operational need and no attempt to find a more socially acceptable solution, breaches that duty and is itself abusive. This is judge made law extending the concept, not a seventh item written into Art. 336 OR.

Timing alone does not prove retaliation either. BGE 136 III 513 held that an employee is protected against a retaliatory dismissal only if they could believe in good faith that the claim they raised was justified, even though it does not actually have to be well founded. The same ruling held a dismissal is not abusive if the claims the employee raised played no causal role in the decision to let them go, so an employer able to show an independent, unrelated reason for the timing is not automatically caught by the abuse rule.

Compensation under Art. 336a OR, and no reinstatement

Winning an abuse claim under Swiss law does not get an employee their job back. Art. 336a OR provides only compensation, paid by the party that terminated abusively to the other party. There is no reinstatement remedy anywhere in the statute, and the employment relationship ends on the date the notice took effect either way.

The general cap is six months salary. The judge sets the actual figure after weighing all the circumstances of the case, so the cap is a ceiling a court can award up to, not an amount every successful claimant automatically receives.

A separate, lower cap of two months salary applies specifically where the abuse consists of the mass dismissal consultation failure under Art. 336 Abs. 2 lit. c OR. Separate damages claims on other legal grounds remain available alongside this compensation, but that is ordinary damages law, a different claim from the Art. 336a compensation itself.

The Art. 336b OR deadline: the single most important thing on this page

None of the above matters if an employee misses the procedural steps in Art. 336b OR. This is the point where most real cases are actually won or lost, and it has nothing to do with how abusive the dismissal was.

The first deadline is a written objection, an Einsprache, sent to the party giving notice. It must be sent at the latest by the end of the notice period. There is no extension for a slow start or a reasonable excuse written into the statute.

The second deadline only applies once the first is met. If the objection was validly made, and the parties do not then agree to continue the employment, the employee must bring the actual compensation claim to court within 180 days after the employment relationship ends. Missing that window means the claim is verwirkt, forfeited outright, not merely time barred in the ordinary sense a limitation period would apply.

Work through an example with real dates. Say an employer hands an employee notice on 1 March, with a two month notice period running to the end of May. The employee believes the dismissal was retaliatory and wants to preserve a compensation claim.

Miss the first deadline, and there is no valid objection on record, so the second deadline never even opens. Miss the second deadline, and the claim is forfeited even though the objection was sent correctly on time. Both steps have to happen, in order, for the compensation claim to survive at all.

Realistic expectations

Being dismissed for a reason that feels deeply unfair is not the same as having a claim under Art. 336 OR. The article is narrower than general fairness, and an employee bringing a claim carries the burden of showing the dismissal falls inside one of its specific categories or the parallel duty of care ground the Bundesgericht has recognized.

Even a successful claim ends with compensation, never a job back, and the amount is set by a judge weighing the whole picture rather than an automatic maximum. None of this is a guarantee of a particular outcome or amount for any individual case. Missing the Art. 336b OR deadlines forfeits the claim before any of these questions are even reached, which is why they deserve attention first, not last.

For a related document dispute that can arise around the same dismissal, see our page on the Swiss job reference and what a qualified Arbeitszeugnis actually has to contain.