In the event of a contractual dispute with your employer, it may be resolved via the ordinary or simplified dispute resolution procedure, depending on the amount and reason for litigation (the summary procedure, which skips the conciliation step, is not available for disputes relating to employment law except in certain cases).
By way of example, the procedures applicable in the canton of Geneva are described below (the process may differ in other cantons).
The conciliation procedure and any disputes in relation to the Gender Equality Act (GEA) or of a value of less than 75 000 CHF are free of charge in Geneva. The cantonal regulation setting tariffs for civil matters (RTFMC, text in French) applies. Expenses are not awarded but the fees are heavily subsidised.
Whether you are following the ordinary or the simplified procedure, the first step is conciliation.
The rules regarding conciliation are set out in articles 197 and onwards of the Swiss Civil Procedure Code (CPC). Conciliation is obligatory in the ordinary and simplified procedures, unless the value of the dispute exceeds 100 000 CHF or unless the opposing party is domicile abroad and the party bringing the case unilaterally decides to forego conciliation.
It is also possible to suggest mediation instead of conciliation, except in harassment cases since the roles and procedures are already well-established.
Conciliation is overseen by a single conciliator, who must be a qualified lawyer (holder of a brevet d’avocat), unless the case relates to the GEA, in which case it is overseen by one chair and two conciliators (one male and one female), each representing one of the parties (the employer and the employee).
Conciliations are not usually open to the public, but the conciliator can decide to make a case relating to the GEA public if it is in the public interest.
The parties, particularly the party requesting the mediation, must appear in person.
Conciliation has four possible outcomes:
1. An agreement between the parties;
2. Authorisation to proceed;
3. Proposed judgement in cases for which the law provides the possibility;
4. Decision in cases for which the law provides the possibility.
If an agreement cannot be reached and the conciliator gives authorisation to proceed, the case goes to tribunal via the relevant procedure.
Geneva’s tribunal procedure is set out in article 12 of the LTPH (text in French).
The tribunal consists of three judges: the chair, who may be either an employer or an employee, one employer and one employee. The chair is a layman, i.e. he could be a cook, a banker, an architect, etc. For cases relating to the GEA, the tribunal must comprise at least one male and one female member.
1. The claim is submitted. It must include:
a. the names of the parties;
b. the desired outcome (e.g. payment of the salary or holiday pay, provision of the employment attestation or of salary statements);
c. the amount in dispute;
d. factual allegations and proposed means of proving them;
e. the date;
f. the claimant’s signature, or that of a delegate;
g. the required annexes:
i. proof of power of attorney, if applicable
ii. proof of authorisation to proceed from the conciliator or the declaration of no conciliation
iii. documents serving as proof
iv. a list of the evidence invoked.
Our top tip: Indicating the legal basis is not obligatory but is strongly advised.
2. The respondent must respond to the claim within 30 days, unless an extension is granted. The tribunal can request advance payment of fees, and the receivability of the claim is conditional upon payment. The respondent must indicate which facts of the claim they acknowledge and which they dispute.
3. The next step is the preliminary hearing, presided over by the chair only. This is a formal hearing to organise the procedure. At the end of this hearing, the chair opens the main hearing.
4. At the end of this hearing, the chair issues an evidence order stating which witness will testify on which allegation and who bears the burden of proof.
5. The main hearing is held in the presence of the whole tribunal. The initial pleas are heard and one or more evidence-gathering hearings make take place.
6. In the final pleas, each party gives their view, having heard all the evidence.
7. The tribunal makes its decision.
If the amount in dispute is 30 000 CHF or less or if the dispute relates to the GEA, the simplified procedure applies. This procedure has fewer formal requirements and is based on the ex-officio investigation approach.
The only obligatory elements of the claim are:
1. The names of the parties;
2. The desired outcome (e.g. payment of the salary or holiday pay, provision of the employment attestation or of salary statements);
3. The annexes (authorisation to proceed from the conciliator, and other optional annexes).
If the legal basis is indicated, a deadline for the respondent to respond must also be included.
If the legal basis is not indicated, the parties will be summoned to a hearing.