A ruling by the Zurich Labor Court on November 11, 2024 has caused a stir: The well-known journalist Anuschka Roshani sued the TX Group, which, among other things, is the publisher of the Tages-Anzeiger and the “Magazin”, and demanded that her dismissal be revoked. The Zurich labor court found her (partially) right and annulled the termination. However, the plaintiff's requests for a declaratory judgment were not met and the requests for satisfaction and compensation were rejected.
The verdict, although not yet published, was publicly discussed controversially and drew public attention to a law that the media otherwise only very rarely report on: the Equal Opportunities Act (GlG) , from which Roshani mainly derives her claims. For example, the NZZ reported that Roshani was entitled to “at least 33 months’ wages” due to the (not yet final) judgment, which was due in particular to the “special features” of the Equality Act.
Exception to the principle of freedom of termination
In fact, the (judicial) annulment of a termination is an exception in Swiss law. Even if a termination is unfair or a dismissal without notice is unjustified, the termination of the employment relationship is fundamentally valid according to the principles of the Code of Obligations, which regulates the employment contract. The so-called freedom of termination applies, which is why you cannot sue for reinstatement. The situation is different under the provisions of the Equality Act. The GlG stipulates that the employer's dismissal can be contested if it follows an internal complaint about discrimination or an appeal to the arbitration board or court by the employee without justified cause. This protection against dismissal applies for the duration of the internal complaint procedure, arbitration or court proceedings and for six months beyond.
In this specific case, the journalist claimed discrimination by her superior at the employer, the former editor-in-chief of “Magazin”. Several media outlets reported on the case at the time, including the German news magazine “Der Spiegel,” which published a guest article by Roshani in which she made serious allegations . Tamedia responded with a public statement from the editor-in-chief . The well-known media entrepreneur Roger Schawinski even wrote a book on the cause .
The TX Group commissioned an investigation into the allegations and then had a second investigation carried out. In addition, the editor had submitted a request for arbitration, with which she demanded a determination that there had been discrimination within the meaning of the Equal Opportunities Act.
Protection against dismissal according to the Equal Opportunities Act
In its ruling, the labor court came to the conclusion that both the second investigation and the submitted arbitration request triggered protection against dismissal under the Equal Opportunities Act and that the protection period upon termination of the employment relationship has not yet expired. During this period, a ban on termination applies to a certain extent. The only exception is if the termination is for “justified cause”. It is assumed that there is a causal connection between the discrimination complained of and the termination.
It is the employer's responsibility to prove that there was a justified reason for the termination and that it was not a revenge termination. If she cannot provide this proof, the termination will be revoked. In contrast to unfair dismissal, according to the Equal Opportunities Act, the burden of proof does not lie with the employee, but with the employer.
Labor court: no sufficient reason for dismissal
In the present case, the TX Group argued in particular that the allegations made by the editor had caused unrest in the team and that the employees were in a conflict of loyalty. The fear was expressed that this situation would have a negative impact on team performance and therefore success. In addition, the editor had already stated before the investigation was completed that she no longer wanted to work with her superior.
The court did not consider the alleged unrest to be sufficiently proven, noting that it was the employer's job to counteract such consequences anyway. The court considered the fact that the editor no longer wanted to work with her superior to be the logical consequence of the misconduct alleged by the editor, which is why this did not constitute a sufficient reason for termination.
The court also had to examine whether the editor had initiated the internal complaints procedure and the arbitration procedure in an abusive manner. The protection against dismissal under the GlG is only effective if the protection standard is invoked in good faith and not in an abusive manner. Although the court found that there was certain evidence that raised questions, it could not be concluded from this alone that the entire lawsuit was brought for reasons of abuse of rights. It did not consider the abusive motives put forward by the employer to have been demonstrated or proven in a legally sufficient manner.
Since the employer was unable to legally prove either a justified reason for the termination or the editor's abusive motives for initiating the measures against discrimination, the termination issued by the employer was overturned by the court.
The (open) question of compensation consequences
However, it is not clear from the decision what compensation consequences the cancellation of this termination will have - i.e. whether the rumored 33 months' wages are actually owed. The court has not (yet) addressed this question. From a labor law perspective, the interesting question arises as to whether wages are owed for this period. The principle “no work, no pay” applies in labor law. If the work cannot be carried out due to the employer's fault or if there is a delay in acceptance of the work, the employer remains obliged to pay the wages. Whether the employer was at fault in this case is unclear and is likely to be disputed by the defendant. The question of the consequences of compensation therefore has the potential to produce further litigation material.
The TX Group has also announced that it will refer the judgment to the next higher instance, the Zurich Higher Court . The last word in this case has not yet been spoken.
The judgment of the Zurich Labor Court of November 11, 2024 (case number AN220047-L/U) was not officially published, but we have been able to see it. As of January 2025, it is not legally binding. Here you can find the press release from the Zurich District Court on the first instance decision.
