INVESTIGATING HARASSMENT CHARGES: WHICH RULES APPLY?
In-house legal counsel and human resource department heads invariably have to deal with sexual harassment complaints. Heightened awareness of gender-based violence and related social ills, as well as employee rights, have made it challenging to professionally and sensitively manage such occurrences.
A recent Federal Tribunal decision sheds some light on the rules applicable in such internal investigations.
On 29 August 2018, a company’s internal ombudsman for behaviour and ethics received a report of sexual harassment by a male employee at the workplace, whereupon the employer initiated an internal investigation. On 23 October 2018, the employment contract of the accused male employee was terminated in keeping with the normal three months’ notice to the end of January 2019.
After an unsuccessful attempt at conciliation, the accused employee filed a lawsuit against the employer with the Zurich Labour Court on 13 July 2020. Apart from an amendment to his work reference letter, he sought compensation for unlawful dismissal.
The Zurich Labour Court dismissed the claim for compensation in its ruling of 26 March 2021. Upon appeal, the Zurich High Court on 23 May 2023 obliged the defendant company to pay the plaintiff a compensation amount of CHF70,000 (plus default interest of 5 percent). The employer appealed this decision to the Federal Tribunal which had to decide on the lawfulness of the termination.
On 19 January 2024, the Federal Tribunal found that there was no unlawful termination.
Jul-Sep 2024 issue
Prager Dreifuss