Key points
- Review actual duties, employment history and role documentation before deciding how the departure will proceed.
- Distinguish financial items, operational handover and decisions concerning authority or access.
- Document the settlement and assess its ratification and terms for the particular case.
Review duties and the history of the role
In an executive departure, the job title does not replace examination of actual duties. Article 9 of the Federal Labour Law links classification as an employee in a position of trust to the nature of the work performed. The contract, organisational chart, authority and day-to-day activities should therefore be compared. [1]
The file can bring together the start date, changes of role, agreed conditions and relevant communications. It should also identify corporate responsibilities that are distinct from the employment relationship. This distinction helps allocate review of powers, appointments and handover obligations without confusing them with the grounds for, or consequences of, termination.
Support the decision with verifiable information
Preparation should distinguish a negotiated departure from termination for cause and identify the facts supporting the option under consideration. Where loss of confidence is being assessed, Article 185 requires a reasonable basis; the expression is not a generic explanation. The grounds under Article 47 require their own assessment. [1] If the employee was promoted from a permanent position, the right to return under Article 186 must also be assessed, unless there are justified grounds for dismissal. [1]
An internal chronology helps distinguish established facts, accounts requiring confirmation and missing documents. It is useful to identify who knows each event and where the supporting material is held before communications are prepared. The assessment should include applicable formalities and time limits, avoiding implementation of an operational decision before legal review is complete.
Separate financial review from operational handover
The financial review can distinguish remuneration, benefits, outstanding payments and variable components according to their documented terms. For each item, the relevant period, calculation basis and supporting material should be recorded. A single aggregate figure makes it harder to identify what is being paid and which items still require agreement or clarification.
In parallel, a handover schedule can identify open matters, records, property, access rights and the people responsible for receiving them. Coordination between management, HR, finance and technology supports an orderly transition. Steps concerning powers and representation need separate assessment according to their nature; the employment settlement should not be assumed to resolve them all.
Document the settlement and its performance
Article 33 provides for a written agreement identifying the relevant facts and rights, with ratification before the appropriate authority and no waiver of rights. Neither the document's label nor the employee's executive rank replaces that assessment. [1] The final paragraph of the same article provides that, for agreements concluded without an authority’s involvement, invalidity may be claimed in respect of provisions waiving rights, while the remaining agreed clauses retain their validity. [1]
Before formalisation, amounts, dates, payment methods and specific handover obligations should be checked. The final file can retain the agreement, schedules and evidence of performance. Post-termination obligations, including any restriction on conduct, require individual assessment; a universal non-compete restriction should not be inserted simply because the role was a senior one.
Sources consulted
- Federal Labour Law Articles 9, 33, 47, 185 and 186.
General information. Application to a particular matter requires assessment of its circumstances and the provisions in force.
