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Siggi Bucher
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Gianni De Nicola is to sign a job reference that the judge dictated to him.
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Siggi Bucher
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But he refuses: “The labor court requires me to keep the employee’s misconduct secret,” said De Nicola. He would therefore not sign the job reference dictated by the judge.
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ZVG
3.7
The case raises the question of what Swiss job references are worth. According to the Swiss Code of Obligations, these must be benevolent but true.
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zvg
7.7
Peter Häusermann has been running a hotline for 20 years, which supports employers in writing difficult job references. He criticizes the fact that numerous codes and phrases have become common in Switzerland that make job references non-transparent.
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More than four and a half years have passed since Verena M. * (33) had her last working day in the Zurich swimwear store Ta-Bou. The engagement ended in a dispute – and employs lawyers and judges to this day.
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The reason is the job reference issued by Ta-Bou owner Gianni De Nicola (69) to his former employees. It does say that M. initially did the work she had been assigned to “full satisfaction”, that her “hardworking, dutiful and flexible nature” was valued and that she was “very popular” with customers.
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However, the letter also states that the situation changed “to the disadvantage” in early summer 2015: “M. came too late on various occasions – without prior notice! “In addition, she refused” information about why she was used two hours later and similar unpleasantness. “
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Judge dictated job reference word for word
After an uproar at the summer dinner, the “inevitable separation” took place: “On July 9, 2015, the job was abruptly terminated because she left the job illegally, gave up the key – obviously she already knew that she was the whole day remaining term of notice would be sick … »
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M. sued this job reference – and was rightly judged by the Zurich Labor Court. De Nicola was growled at issuing a new certificate to his former employees. But it did not stop there: the judge dictated word for word to the entrepreneur how to formulate this testimony.
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“The labor court requires me to keep the employee’s misconduct secret,” says De Nicola. He would therefore not sign the job reference dictated by the judge. “I would have to lie and would dupe future employers of M.”
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Fine of 6,000 francs
The judiciary does not listen to this argument. In April 2019, the Zurich District Court upheld a conviction for “multiple disobedience to official orders”. A fine of CHF 6,000 was imposed on the entrepreneur, which is converted into a prison sentence of 60 days if not paid.
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De Nicola cannot even give in to the threat of prison: “If I have to, I go to the European Court of Human Rights in Strasbourg to fight against this false system.”
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The De Nicola case is an extreme example. However, disputes about job references are not uncommon in Switzerland, as Thomas Geiser says, emeritus professor of labor law at the University of St. Gallen: “It is quite common for the employer to be sentenced under the threat of punishment to issue a corresponding certificate.”
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Benevolent, but true
But how much are judgments valued by judges worth? And how much criticism can a job reference bear in Switzerland? Geiser comments: “Job references must be true. If the employer is not satisfied with the work of the employee, she may not issue a positive certificate. »Nevertheless, the certificate must be” benevolent “in accordance with the Swiss Code of Obligations.
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Benevolent, but true – this principle may have contributed to the fact that numerous codes and phrases have become common in Switzerland that make job references non-transparent. “For example, if a certificate says that someone worked” to the satisfaction of the employer “, that means today: the performance was poor,” says Peter Häusermann, who has been working for 20 years a hotline operates that supports employers in writing difficult job references.
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Häusermann criticizes the widespread practice sharply. He is convinced that job references can be benevolent and true even without a secret language. “There are no people who are exclusively bad and can be classified as complete failures.”
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Testimony as an incentive for employees
The employer should therefore begin with the strengths of the employee in a certificate, then point out the weaknesses objectively – and finally end with a positive aspect.
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The weaknesses should, if possible, be formulated so that there is an incentive for the employee to do better in the future. «If someone is regularly late, you can write, for example:‹ We would have hoped that the employee would have shown a little more reliability when it came to punctuality. ›»
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Despite these proposed solutions, it is not to be expected that coded job references will disappear in the near future. Häusermann: “The basic problem is that most companies attach little importance to job references.” They could not see that uncoded job references bring more to everyone involved than linguistic phrases.
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Hero or stubborn?
“The victims of this irresponsible behavior are always the workers,” believes Häusermann.
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And how is that in the De Nicola case? Is the entrepreneur a principled hero – or rather a criminal stubborn? The truth is in between. The job reference he has written is contrary to the principle of goodwill. On the other hand, the exclusively positive employee rating dictated by the court should contradict the principle of truthfulness.
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Either way: De Nicola takes it easy. “The only thing that counts for me is that I am at peace with myself!” He always sleeps well, he assures.
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