Vacation pay for part-time work

Question from an SMPV member: I am employed part-time at a music school for 30%. However, I don't get paid during my vacation. The school director says that vacations are included in the monthly salary and that I don't benefit from anything during vacations. Is this permissible?

Answer from Dr. Kovacs:

1. The employer must pay the employee the full salary due for the vacation (Art. 329d para. 1 CO, Swiss Code of Obligations). The employee may not be paid less during the vacation than if he had worked during this time. Agreements that place the employee in a worse position are null and void. The mandatory provision of Art. 329d para. 2 CO also stipulates that vacation may not be compensated in cash for the duration of the employment relationship.

2. However, there is an exception to this principle: in the case of irregular employment, it can be difficult to calculate the current vacation pay, as each monthly salary is different and the current year does not yet allow an average salary to be calculated. In such cases, compensation for vacation pay in the monthly salary paid on an ongoing basis is permitted as an exception to the legal text.

However, this is subject to the following conditions: Firstly, the employment must be irregular. Secondly, the portion of salary earmarked for vacation must be clearly and explicitly stated, provided there is a written employment contract. Thirdly, the individual written payslips must show the portion of salary intended for vacation (e.g. 8.33% vacation pay). Simply stating "vacation pay included" is not sufficient. It is necessary for the vacation pay to appear by stating a specific amount and/or percentage, both in the employment contract and on the individual payslips.

If these conditions are not met, the employer must continue to pay the salary attributable to the vacation during the vacation. Under certain circumstances, this may even constitute a double payment if the normal salary was actually paid plus the vacation pay, but this did not meet the aforementioned requirements. The fact that the employee has actually taken the vacation to which they are entitled does not change this.

3. conclusion and answer to the specific question: The music teacher works part-time, but on a regular basis. The vacation pay is not shown either in the employment contract or on the payslips. The music school director's actions are therefore contrary to mandatory law. The teacher can therefore demand back pay for her vacation. The limitation period is 5 years. The salary claim for vacation can be asserted during or after termination of the employment relationship.

Strategically, however, you should always consider whether you should assert claims during the current employment relationship. It is important and right to assert claims. But sometimes it can also cost you your job.