Swiss Federal Supreme Court Tightens Requirements For Objections Against Wrongful Termination (Art. 336b CO)

In its decision dated 7 July 2025, the Swiss Federal Supreme Court addressed the requirements for an objection against a wrongful termination (Art. 336b CO).

While the Federal Supreme Court had initially emphasized that such objections should not be subject to overly strict formal requirements, more recent decisions had already deviated from this principle. In 2014, the Federal Supreme Court held that an employee must clearly express the will to continue the employment relationship when objecting (4A_320/2014 of 8 September 2014). In 2023, the Federal Supreme Court confirmed that even where the explicit wording "objection against termination" was used, this may not be sufficient to prove willingness to continue the employment relationship. In that case, the fact that the employee had simultaneously confirmed the termination date was decisive: he was seen as merely objecting to the grounds for termination, but not the termination itself (4A_59/2023 of 28 March 2023). Both decisions were widely criticized.

Now, in its latest ruling, the Federal Supreme Court has reaffirmed its controversial argumentation:

• A valid objection against wrongful termination under Art. 336b OR requires that the employee is willing to continue the employment relationship and must therefore also be directed against the termination of the employment relationship as such (and not only against the wrongful reasons).
• Therefore, there is no valid objection if the employee simultaneously signals willingness to terminate the employment relationship (e.g., by signing a new employment contract with a third party).

In the present case, the employee had explicitly declared an objection under Art. 336b CO. However, he had signed a new employment contract with a third party after raising the objection and had previously expressed to his superior that he was looking forward to the end of the employment relationship. The lower court concluded that he lacked the genuine will to continue the employment relationship. The Federal Supreme Court upheld this view, rendering the objection invalid and denying compensation for wrongful termination.

Fundamental concerns:

• The requirement of a will to continue employment has no basis in the statutory wording of Art. 336b CO.
• It also conflicts with the systematic structure of Swiss dismissal protection: unlike cases of protection against untimely dismissals (i.e., during certain blocking periods e.g. due to illness or pregnancy), a wrongful termination remains valid and ends the employment contract. Employees have generally no right to continued employment, only a potential claim for compensation.
• In practice, objections under Art. 336b CO are almost never aimed at reinstatement but at safeguarding compensation claims. Requiring employees to be willing to continue an often irreparably broken relationship of trust is therefore detached from workplace realities.

Practical takeaway: Employees should draft objections carefully. Best practice is to state that the termination is considered wrongful, object to the termination (rather than its grounds), while expressly stating the employees will to continue the employment relationship but reserving the right to claim compensation if no agreement on continuation of the employment relationship is reached.

4A_618/2024 07.07.2025