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BGE 66 II 142 ΓÇó Tacit renewal of employment contract; early termination for just cause
BGE 66 II 142Recueil officiel du Tribunal fédéral (ATF) / Volume II18 juin 1940Not Examined
The court stated that Art. 346 CO regulates two distinct forms of tacit renewal of an employment contract: renewal by mutual conduct, limited to one year at most, and renewal caused by the absence of required prior notice, which is renewed without that limitation. It also held that Art. 352 CO does not impose an absolute immediacy rule for dismissal for just cause; the judge must consider all circumstances, but an employer who renews the contract despite known serious breaches generally waives those grounds as a basis for immediate termination.
Art. 346 CO; tacit renewal of a fixed-term employment contract; Art. 352 CO; immediate termination for just cause. Art. 346 al. 1 and al. 2 CO govern two distinct situations: mutual tacit prolongation of the contract, which is deemed renewed for the same period but at most for one year, and renewal resulting from the absence of required notice, which is deemed renewed without temporal limitation. Under Art. 352 CO, no rigid rule requires dismissal to follow immediately upon knowledge of the just cause; the decisive factor is whether, in light of all circumstances, the employer’s conduct amounts to waiver. Renewal of the contract despite known serious breaches normally precludes reliance on those breaches as just cause, save possibly as aggravating elements of later misconduct.
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