Performance Reviews with Surprises: How Should I Respond?

Question from an SMPV member: How can I defend myself if, during the MAG, the school administration makes serious, unexpected accusations or even tries to change my contract?

Answer from Dr. Kovacs:
Performance reviews (MAG) are a normal part of day-to-day management at music schools—periodic progress assessments, feedback on lessons, and occasionally discussions about teaching loads, salaries, or conflicts with parents and school administration. Legally, they are uncontroversial as long as they are conducted in an objective, predictable, and fair manner. They become problematic when school administration uses the meeting to unexpectedly present a new contract or when a teacher is confronted with serious allegations without warning.

1. The Legal Basis:

Music schools in Switzerland vary greatly in terms of their organizational structure. Some are operated as organizational units of a municipality or canton and employ their staff under public law; others are organized under private law and enter into employment contracts in accordance with the Swiss Code of Obligations. In the case of employment under public law, cantonal or municipal personnel law applies, as do constitutional procedural safeguards—namely, the constitutional right to a fair hearing, which applies to decisions involving warnings or terminations. In the case of employment under private law, this guarantee does not apply directly; however, in practice, the duty of care and the principle of good faith (Art. 328 CO, Art. 2 CC) lead to very similar outcomes.

The specific circumstances in each individual case are determined by the employment contract or the employing organization’s employment or personnel regulations. It’s worth reviewing these documents before any sensitive performance review: They often explicitly address qualification interviews, evaluation procedures, or the involvement of a trusted representative—and thus go beyond what the Swiss Code of Obligations expressly provides for.
Regardless of their legal form, Article 328 of the Swiss Code of Obligations (OR) applies to every employer at music schools organized under private law: The employer must respect and protect the dignity of employees and take their health into consideration. This duty of care implies that employee evaluations must be conducted in a factual and dignified manner, with adequate preparation on both sides. Objectively justified criticism of performance is permissible as long as it is clearly related to the employment relationship; private matters not relevant to the workplace or derogatory, insulting remarks have no place in the MAG.

2. Are contract amendments permitted under the MAG?

It is permissible for school administration to use a MAG to discuss a change in the terms of employment—such as a reduced workload, a new subject assignment, or modified terms of employment. However, it is not permissible to enforce a contract amendment during the meeting itself and to demand an immediate signature.
Legally speaking, a unilateral change to essential terms of the contract requested by the employer constitutes a “change-based termination”: The employer terminates the existing contract and, at the same time, offers to continue it under new terms. Such a change cannot be unilaterally enforced retroactively or without observing the standard notice period and the termination date. For the affected teacher, this means:
– There is no obligation to agree to or sign a new contract document under the MAG. In such a case, the employer should be asked for a grace period, and this should be documented in writing.
– If the new provision is not accepted and the employer insists on the change, the employer must follow the proper procedure for termination for cause, ensuring that all notice periods and deadlines are strictly observed.

3. When school administrators are caught off guard by serious accusations

As a general rule, an employee may not refuse to participate in a properly conducted, work-related discussion; simply saying, „I don’t want to hear that right now,“ is not sufficient grounds to avoid the discussion. The situation is different if the manner of the confrontation itself crosses the line of the employer’s duty of care and the protection of personal dignity —for example, through a deliberate ambush tactic that leaves no opportunity for preparation, through insulting or degrading remarks, through threats, or through a manner of conducting the conversation that is clearly intended not to clarify the issue but to intimidate.
A teacher is not obligated to provide immediate and definitive information regarding allegations that are being raised against them for the first time at that moment and without prior knowledge of the case file. It is advisable to explicitly state that you acknowledge the allegations but, given the lack of preparation and without knowledge of the specific basis for the allegations, cannot and do not wish to provide a substantive response, and to request a written summary of the allegations as well as a reasonable deadline for submitting a response. This is not a refusal to engage in the discussion, but rather the exercise of a fair procedure derived from the duty of care. For teachers employed under public law, this corresponds to the essence of the constitutional right to a fair hearing, which requires access to the case file and an opportunity to respond prior to any adverse personnel decisions.
Simply walking out of a meeting is legally risky: Anyone who abruptly ends a properly conducted, work-related meeting is, in principle, in breach of their obligations under their employment contract. The situation is different if the meeting itself is no longer being conducted properly—for example, because it has devolved into insults, threats, or a situation in which the teacher is no longer able to follow the meeting in an orderly manner. In this case, walking out can be justified on the grounds of protection of personal rights under Art. 328 of the Swiss Code of Obligations (OR) and Art. 28 of the Swiss Civil Code (ZGB). Instead of leaving without comment, it is advisable to explain that you cannot continue the meeting in this manner and to request that it be resumed at a later time. This ensures that it is documented that it was not the teacher, but rather the manner in which the conversation was conducted, that prompted the termination.
There is no specific provision in the MAG that explicitly establishes the right to be accompanied by a trusted person. However, such a right can be inferred from several sources and is recognized in practice.
It follows from the duty of care (Art. 328 OR) that, while an employer may in principle refuse to allow a trusted representative to participate, a claim under both private and public law arises as soon as the employer himself participates in the meeting with more than one person (principle of equality of arms).
For music school teachers employed under public law, it is also worth reviewing the relevant cantonal or municipal personnel laws or regulations: These often provide for the right to a fair hearing in proceedings involving warnings or termination, and in some cases also the right to have a trusted representative present.
The employer should be informed of the request for a representative to attend, preferably in writing (an email is sufficient), and the representative’s name and role must be disclosed. The employee is free to choose the representative. However, the employer may reject certain individuals for objective reasons, such as conflicts of interest. Possible candidates include coworkers, union representatives, attorneys, or a union representative. The latter stems from the constitutional principle of freedom of association, which also protects the right to receive union support and representation within the framework of the employment relationship.

4. Proof of the MAG's contents?

• A legally significant discussion such as the MAG should always be documented in writing for evidentiary purposes and, ideally, signed by both parties. There is no universal legal obligation on the employer to do so outside of specific regulatory requirements (such as those often in place for employee evaluations in the public sector); this makes it all the more important for the teacher to take the initiative.
• Before the meeting, you may request that minutes be taken and signed afterward; if you have a trusted representative, that person can take on this task during the meeting itself and take notes. If the minutes are not signed by both parties, it is advisable to send your own set of minutes to the employer as a confirmation letter.
• If a teacher receives a report prepared by the employer for signature, the teacher is not obligated to sign it. It is permissible to include a reservation with the signature („acknowledged, but do not agree with all points, see attached statement“) or to refuse to sign altogether and instead submit their own written statement, which must be included in the file.
• Under data protection law, there is a comprehensive right to access all data collected about the teacher and a right to have inaccurate facts corrected (but not value judgments).
• Anyone who wishes to make an audio or video recording of the MAG must openly inform all participants and obtain their consent. Otherwise, making secret recordings may result in criminal or civil liability, and the recording may be inadmissible as evidence.

5. Conclusion

A MAG is an important, legally significant discussion. It is therefore essential to have the legal situation clarified on a case-by-case basis when specific problems arise and to determine the appropriate course of action.