I'm being mobbed - what can I do about it?

One day you become aware of a fear you have been suppressing for a long time: I'm being harassed at work. Panic? No, try to keep a cool head and don't act emotionally or without thinking. There are now new ways to defend yourself.

Should I go to my boss / superior? Are there other people I can turn to?

According to the laws of the Swiss confederation, the boss (and thus the company's management) is - as part of its duty towards their welfare - responsible for the physical and psychological well-being of its employees. The employer has to ensure that in the company work is suitably organized and that the personal integrity of the employees is protected. Should infringements be committed by work colleagues or superiors, then the company management, as part of its duty to care for them, has to do everything it can to establish conditions that once again conform to the law.

The following possibilities exist for employees to protect themselves:

1. Should the company management fail to comply with its duty, the employee's last chance is to submit a complaint of non-compliance with dispositions made under public law to ensure his health, to the appropriate cantonal authorities. This is the course to follow if the employee doesn't want to sue the employer - either in the industrial tribunal or civil court - for non-adherence to his employment contract, because in so doing he would put himself in danger of being fired. The "appropriate cantonal authorities" - as a rule it'll be the Cantonal Office for Industry, Trade and Labor - have a duty to examine complaints of mobbing provided you havn't quit your job yet. This is not considered to be an administrative complaint, but a legal remedy that exists outside the full legal process  (i.e. a lawsuit). The authorities are thus made aware of the facts of the case, which, if they had known about them before, they would have had to take up ex officio. This kind of complaint, also known as a supervisory complaint, is linked to neither form nor time limit. The employee may ask to have his complaint handled confidentially.

The supervisory board examines the complaint to see if the employer is adhering to the statutory regulations relating to the health policy and protection of health. If the lives or the health of employees is being disregarded, the supervisory authority takes the necessary measures by issuing an administrative order to re-establish a situation that will conform to the law; in particularly severe cases the works or company can even be closed down for a certain time. The works or company can submit an administrative complaint against such an order to the cantonal appeal authority (Rekursbehörde). The decision of the last instance of the cantonal authority can normally be passed on to the Federal Council, and in exceptional cases, to the Federal Court.

In addition, you can examine whether there are other people you can turn to for support. For health problems, especially psychological ones, you should call on a doctor, or a psychiatrist or psychotherapist familiar with mobbing cases. If your chief preoccupation is with any of the subjects listed below, you need to contact either

§       a lawyer or

§       a mobbing specialist well acquainted with these issues (see our list):

-        the terms of your employment

-        protection against unlawful dismissal

-        non-payment of your salary (you're not receiving it, but should be)

-        work certificate

-        problems with your rights to social security (health insurance, accident insurance, unemployment compensation, invalidity, old-age pension etc)

Before using any of the legal remedies available, I've decided to speak to my superior.  From a tactical point of view, how should I behave?

Even if you don't stand much of a chance of success when you ask for a meeting with your boss before opening legal proceedings - whether administrative, civil, or penal - at least by doing so you can't be accused later on of neglecting to make exhaustive attempts to reach an amicable agreement. In this kind of conversation, the point is not so much for you to take a stand and try to save your job, but above all to show that you are prepared, together with your boss or management, to look for intra-company solutions, with a view to defusing a situation that is intolerable for you, and to look for an acceptable alternative. In this meeting, don't make sweeping reproaches. Be factual, and respond to the boss's counterarguments, but without giving in to them. Demonstrate your point with examples of particular situations when and where you were treated in a way that did not conform to contractual regulations. In particular you should mention any violations of your personal integrity, as well as, if applicable, circumstances in which your health was put at risk or damaged (s.u. N. 1; Art. 328 OR, Art. 28 ff. Zivilgesetzbuch, ZGB). Violations to the personality include, among other things, any harassment or degrading treatment of the employee as well as disparagement of his reputation as a professionally competent person. According to the prevailing rules of decency, you should promptly demand redress from the company, without further threats. If they seek to put you off with hopes of a reorganization at some unspecified time in the future, this should be refused as an inadmissible delaying tactic.

Don't lose your cool! Don't take justice into your own hands in an attempt to force the employer to behave properly. You will only put yourself in the wrong and jeopardize your own future career; moreover, you will be accused of having poor or no social skills. Above all it is important that you take down in writing the contents of this discussion and the result of it, no matter what the outcome might be, and that you tell your superior that you are making a record of it. A written record of this kind can be used - in later legal proceedings before an administrative court or court of law - as a piece of evidence of decisive importance.

Should I give notice if I'm being mobbed?

Never quit your job in a fit of depression, frustration, despair or anger, without first making sure what the future has in store for you from the point of view of the labor laws, and of your economic and social situation. If you are the one that ends your contract with the employer, you will be sacrificing a large portion of the claims you are entitled to from the employer, in particular those limitations on dismissal that operate in favor of the employee, and that exist in the Law on labor contracts in both their practical and temporal applications. In particular these deal with claims resulting from abusive dismissal (Art 336 ff. OR) and with those periods - limited in time - of non-compliance with the work contract such as, for example, military service, illness and pregnancy (Art 336c OR, Kündigung zur Unzeit - Dismissal at the wrong time). Check carefully whether a catch-all cancellation of contract might exist that could end a work contract prematurely, and that it doesn't contain anything prejudicial to your rights.

Take note that once you've given notice, as soon as the employer has received it, you can't change your mind about it. The only exception to this rule is when you can prove you were coerced into giving notice against your will by means of intimidation.

If you give notice, you run the risk that the unemployment insurance authorities regard it as your own fault that you've become unemployed, and may suspend your unemployment entitlement for up to 60 days as a result, unless you can provide a doctor's certificate pointing out that to continue the work relationship with the former employer would be unreasonable for you for health reasons.

Summary: don't act rashly! If you feel that from the point of view of your health you are no longer able to show good judgment, consult a doctor who will examine whether you are in a condition to continue working. In parallel and in addition to this, bring in a lawyer, so that your rights will be defended as best as possible.

Should you be on sick leave or declared unfit to work, don't regard this as wasted time. Don't consider a stop to your daily activities because of illness to be the same thing as a personal declaration of bankruptcy, but rather as a new orientation to your life - one that takes into consideration all those factors that are really of the most importance to you.

How can I ensure preservation of evidence when I'm being mobbed?

It is recommended that you write a "mobbing-diary" for the preservation of evidence. Who is harassing me? Colleagues? Superiors? Who does what, when and how. Give the most precise information possible about the people involved, witnesses, behaviors, places, dates and times; in addition, you should collect all possible pieces of evidence and all notes or documents that could be relevant as proof, together in a safe place, one that no-one other than yourself has access to. What motives could there be behind this mobbing? What is their intention? Do I have allies? etc. An analysis of the prevailing situation is of great use, both for the person being mobbed as well as later on for all possible trusted third parties such as doctors, mobbing-experts, lawyers and judges. In addition to a mobbing-diary, any information you may have given to your doctor about mobbing in your work environment, can be helpful. If a person who is being mobbed releases the doctor treating him from the doctor's obligation to medical secrecy so as to give evidence in an emergency situation, the notes of this doctor could be significant.

My job specification has been changed - what should I do?

Be careful if your employer tries to modify your job specification document unilaterally and without your explicit agreement, or tries to put you into outplacement - together with vague declarations of future professional advancement for you to make the idea more palatable. When you look more closely at changes to the job specification document, they could well be disadvantageous, and furthermore, might represent a prelude to terminating your employment contract. If you have any doubts, you should refuse the changes to your job specification in writing, as long as these changes have not previously been scrutinized together with yourself and an independent specialist in this field, and found to be harmless.

If your employer gives you notice of termination of your contract because you didn't agree to a disadvantageous change to your contract, the employer still has to maintain your contractual notice period. This is true even if you have agreed to a disadvantageous change to your contract.

Should I try to go it alone against my employer?

Showing solidarity can be of great support to a person affected by mobbing, specially if his colleagues, the employees' association or the union openly show their sympathy and support and become active in favor of the person being mobbed. However, solidarity alone is not enough to protect the person being mobbed from further trouble at work. For example, if the person being mobbed makes irrelevant accusations or ones that can't be proven, he fails in his own duty to show good faith, which can lead to his being fired without notice. It is most important to choose your words very carefully during discussions with superiors and colleagues. Avoid the word "mobbing" when criticizing your work environment; instead refer exclusively to concrete and relevant facts, that are - to your thinking - unlawful and contrary to the terms of your contract. Refrain from adding further commentary to these facts, as this can end up being used to make further trouble for you at work. It would be counter-productive, in a time of crisis, to give up and stop fulfilling your work obligations to the best of your knowledge and ability, as required by employment law. Don't let the employer's provocations affect you. Provocation is used on one hand to distract attention away from the original problem, and on the other, to try and shift the blame onto you for internal problems that you are not responsible for.

What should I do if my employer gives me notice?

Under private law, every employment contract is freely subject to termination, and there exists no protection against being sacked, even in a case of abusive dismissal. Limited protection against dismissal exists only for those employment relationships governed by public law, if public legislation calls for presentation of the specific grounds for dismissal, or if gender-specific discrimination exists.

If your letter of dismissal doesn't contain the grounds for dismissal, you must immediately ask for them.

It is recommended that in the case of any dismissal, you lodge an objection in writing with the employer by postal registered letter during the notice period, in which you explicitly state that the dismissal you received is abusive/improper (Art. 336a OR). If you don't make this objection, then the Unemployment Insurance Office will normally consider your dismissal to be self-inflicted, and as a result will suspend your right to unemployment compensation for up to 60 days.

If you have raised an objection to your dismissal on the grounds that it is abusive or improper, you have a right, within 180 days of your employment contract's end-date, to claim from your employer or the industrial tribunal compensation of a maximum of 6 months' salary (Art. 336a, 336b OR). The payment of this compensation satisfies the economic effects of your dismissal (BGE 123 III 394).

This view, which is reflected in prevailing legal practice, precludes claims for loss of salary, as well as claims for costs involved in reinsertion, interviews and relocation. The Federal Court has expressed itself on the subject of the assessment criteria for this kind of compensation in its decision of 28 March 2002, No. 4C.86/2001 (JAR 2003 S. 275 ff.). After adjudication, further damages can only be claimed on grounds other than abusive dismissal.

The Work Certificate (Work Reference)

The employee may ask for a work certificate - at the latest when the contract of employment comes to an end - in which the nature and length of the employment relationship is described, as well as the employee's performance and behavior. If specially asked for by the employee, the work certificate must limit itself solely to information about the nature and length of the employment relationship (Art. 330a OR). The employee also has the right to ask for, in addition to the above, a "Full work certificate" and a "Confirmation of employment".

Don't forget that a work certificate is not only an acknowledgment of work performed, but over and above that the key to your future professional career. If there are assertions in your work certificate that you consider to be untruthful or incomplete, then it's worth getting the industrial tribunal to push for a correct work certificate that does justice to your work performance. As far as the contents of the work certificate are concerned, it must be characterized by reasonable goodwill towards the employee, so as to make his re-entry into professional life smoother. At the same time the work certificate must satisfy the principles of  completeness and truth: in other words, the certificate must contain all essential facts and assessments that are significant to the overall judgement of an employee, and in addition all the factual information must be objectively correct.The principle of veracity takes precedence over the principle of goodwill. The certificate can and must therefore contain unfavorable facts and judgments as well, unless those should be cases of one-off incidents and circumstances, and that are not typical of the employee (Decision of the Federal Court of 17.02.2002, No. 2A. 118/2002).

Is self-doubt justifiable if I'm being mobbed?