Duty of fidelity

Definition

Under Art. 321a, Para. 1 of the ‘CoO’, the statute law understands the duty of fidelity as a duty of an employee, to uphold the justified interests of an employer to the extent of due fidelity. The duty of fidelity is moreover a duty to desist. When expressed in simple terms, this means that an employee is to desist from all actions causing commercial detriment to an employer.

The general duty of fidelity and the duties specifically laid down in the statute law are individually considered as follows:

The individual duty of fidelity

General duty of fidelity.

The general duty of fidelity includes all cases not capable of being defined under other stipulations. An employee infringes the duty of fidelity when:

  • he or she behaves unlawfully- or immorally towards an employer, or
  • causes unrest in order to disturb the internal harmony of the business, or
  • spoils the image of the business, or
  • canvasses customers and suppliers away from the business, or
  • exploits the internal infrastructure of the business for private purposes.

All due care treatment of the operational facilities and equipment.

Under Art. 321a, Para. 2 of the ‘CoO’, an employee is to treat all materials, machinery and technical equipment and motor vehicles etc., with all due care.

Manufacturing- and business secrets

Under Art. 321a, Para. 4 of the ‘CoO’, an employee may not exploit- or divulge to others -any secret facts, of which an employee becomes aware at work, during the time period of a contract of employment. Secret are deemed all facts, which are not in the public domain, not generally made available, and those in which an employer has a vested interest that such remain secret.

An employee is also to observe a duty of maintaining secrecy after the termination of a contract of employment. Such a duty is to be upheld as long as is necessarily required for safeguarding the justified interests of an employer.

Illicit employment

During the time period of a contract of employment, an employee may not provide labour to a third party for remuneration when an employee thereby acts in competition with his or her employer (comp. Art. 321a, Para. 1 of the ‘CoO’). An employee may also not work separately as a self-employed person or work without remuneration.

Duties of accountability and relinquishment

An employee is to relinquish to an employer everything, which an employee receives from third parties. An employee is to inform an employer of all beneficial allowances received from others during contractual employment, and is immediately to relinquish everything to the employer which is earned in the exercise of contractual employment (comp. Art. 321b of the ‘CoO’).

Sanctions

Should an employee infringe the duty of fidelity, various sanctions can be imposed:

  • the termination of a contract of employment (without time period of notice only in cases of grievous infringement);
  • liability as per Art. 321e of the ‘CoO’ (only in cases of culpability);
  • enforcement of compliance before the court.