Ordinance on harassment and interpersonal difficulties in the workplace (OHarc) - Subject Matter and Scope (MOBV)

1. This Regulation establishes an informal procedure for the following cases

a) Bullying;

b) Sexual harassment;

c) Any other form of interpersonal issues in the workplace or during work.

2. It also establishes some rules for the formal procedure.

3. This Regulation applies to all personnel subject to the State Personnel Act. It applies mutatis mutandis to apprentices and interns.

1. Mobbing is understood as hostile or derogatory statements or actions by one or more persons in the workplace, frequently and repeatedly occurring over a prolonged period, aimed at isolating, demeaning, excluding, or excluding the affected person from a certain relational structure.

2. Sexual harassment is a form of discrimination. It is understood as any harassing behavior of a sexual nature or any other behavior based on gender that impairs the dignity or physical or psychological integrity of the employee within the employment relationship. Sexual harassment can take various forms, such as sexist remarks, intrusive glances, suggestive comments or innuendos, displaying pornographic material, unwanted physical contact and intrusive behavior, advances accompanied by the promise of advantages or the threat of disadvantages, or in extreme cases, even sexual assault, coercion, or rape.

3. Severely distressing interpersonal problems encompass all social interactions at work or in the workplace that an employee or a group of employees perceive as highly negative.

4. Employees of the cantonal administration have the right to be treated in a way that preserves their dignity and personal integrity. No form of harassment is tolerated in the cantonal administration as it violates personal rights and human dignity.

1. Experts from the counseling center "Health-Social Space" affiliated with the Office for Personnel and Organization (POA) are designated as confidential advisors. Adequate representation of both genders is ensured.

2. Confidential advisors must possess fundamental social, psychological, and legal expertise in the relevant subjects and hold a certified (ongoing or completed) training in mediation.

3. Confidential advisors work in a location where the necessary discretion is guaranteed.

4. The tasks of the confidential advisors are as follows

a) They handle complaints through an informal procedure.

b) They conduct mediation with the consent of the affected parties.

c) They inform staff about issues related to bullying and sexual harassment as well as conflicts in the state personnel workplace; on issues of sexual harassment, they collaborate with the Office for Gender Equality and Family Affairs (GFB).

5. In cases of sexual harassment, the confidential advisors inform the affected individuals, in any event, that they have the option to seek legal advice from the GFB as the specialized office for issues of sexual harassment and for the Federal Act on Gender Equality.

1. The confidants are authorized to act individually, as long as they do not make specific proposals for the implementation of personnel-related provisions at the statutory or regulatory level, or intervene with the superiors of the relevant department.

2. If the confidants make specific proposals for the implementation of personnel-related provisions, they shall inform the management of the POA in advance. The management shall also be notified if all parties involved have decided to intervene with the superiors of the department.

1. Documents and information of which the trusted individuals become aware during the informal phase are fully protected by official secrecy.

1. The actions of the persons of trust are strictly confidential in accordance with the guarantee of autonomy under Article 4.

2. No confidential information may be disclosed to third parties unless all parties involved in the informal procedure agree to it; Article 4 paragraph 2 remains reserved.

3. Regardless of the outcome of the informal procedure, there is no legal entitlement to subsequently refer to statements made during this phase before an administrative or judicial authority.

4. If the Participatory Foundation for Gender Balance (GFB) is involved in a case, it is also obligated to maintain confidentiality.

1. The parties and the persons accompanying them shall not suffer any disadvantages due to their participation in the informal procedure, provided they do not act abusively or with harmful intent.

1. The State Council appoints four external attorneys, specialized in labor law and/or bullying and sexual harassment, at the request of the joint supervisory commission according to Article 16.

2. The external attorneys may be requested to participate in both informal and formal proceedings (Art. 11 and 15).

1. Employees who perceive their professional relationship with other colleagues as conflict-prone or problematic and feel personally injured or harassed can contact the confidants at any time.

2. For issues related to sexual harassment, employees may also directly contact the GFB, which, according to the Law on the Office and Commission for Equality of Women and Men and for Family Issues, has an information and advisory role.

3. The confidants may refuse to process complaints that are obviously unfounded, malicious, or offensive.

1. The trusted representatives invite the affected individuals and listen to them; the affected individuals may be accompanied by a person of their choice.

2. With the consent of the affected individuals, the trusted representatives may, if necessary, contact the accused individuals and propose to hear them.

3. After this clarification, the trusted representatives, considering all circumstances, may particularly suggest the following to the affected individuals

a) initially to contact their supervisor, the person responsible for personnel matters, or their employing authority;

b) to request the initiation of a formal procedure as per Article 12;

c) to approach another authority;

d) to demand mediation as per Article 11;

e) to consult an external lawyer as per Article 12.

4. The trusted representatives may

a) accompany the affected individuals in the cases referred to in paragraph 3, letter a;

b) with the consent of the affected individuals, provide written proposals for measures to the employing authority and/or the supervisors of the affected individuals.

1. Mediation is a consensual form of conflict management or resolution in which a qualified, independent, and impartial third party assists the parties in an interpersonal workplace conflict in negotiating a solution.

2. Mediation is free of charge for the affected individuals.

3. If the mediation is successful, the parties draft and sign an agreement. Each party receives a copy of this agreement. If the agreement includes specific proposals for measures under personnel legislation or financial obligations, it must be submitted to the hiring authority for approval; the authority checks whether the draft agreement is legally valid and feasible. The parties decide whether and how supervisors and colleagues should be informed.

4. If the mediation fails or cannot be conducted, the confidants immediately inform the affected individuals and, if necessary, the accused persons.

1. If the common measures proposed by the trusted persons under Article 10 are not sufficient, the trusted persons propose to the affected person to contact an external attorney listed on the roster provided by the state.

2. If the affected person contacts an external attorney from the provided list, they consent to grant a power of attorney, allowing the external attorney to exchange information with the trusted person regarding the matter.

3. The external attorney advises the affected person; in cases of bullying or sexual harassment, the state covers the costs of up to two consultations.

4. If negotiations occur, the external attorney may accompany the affected person to a meeting with the appointing authority; this meeting is included in the two consultations mentioned in paragraph 3.

1. The trusted representatives shall inform the affected persons and the contacted accused persons in writing in every case that the informal procedure has been concluded.

2. This document shall only mention the affected persons and the contacted accused persons, and it shall record whether the procedure has been successful or not.

3. If the affected persons reject the measures according to Article 10 paragraph 4 letter b, the informal procedure is terminated.

1. The formal procedure is governed by the Administrative Procedure Act (APA); the provisions of the State Personnel Act and the special guarantees in the area of equality between women and men under federal legislation remain reserved. The authority directing the formal procedure shall in all cases collaborate with the GFB regarding the legal aspects in cases of sexual harassment.

2. If mediations requested and accepted by the parties are conducted by trusted persons who were not involved in the informal procedure, or by external mediators, the employment authority may suspend the formal procedure.

3. If a formal procedure follows an informal procedure, the trusted persons and all other participants in the informal procedure are excluded from the investigation process to preserve the confidentiality of their actions.

4. Under Article 141a of the Regulations of December 17, 2002, on State Personnel, the Conciliation Commission for Gender Equality in Employment may be requested to give an opinion on a complaint against a first-instance decision that concerns a public-law employment relationship and involves discrimination alleged by the complainant party within the meaning of the Federal Act on the Equality of Women and Men.

1. The employing authority may delegate the conduct of the formal procedure to an external attorney who is listed on the state's provided list of attorneys. In this case, the chosen individual must be different from the person selected by the employee according to Article 12.

1. The State Council establishes an equal supervisory commission for the combatting of bullying and sexual harassment (the Anti-Bullying Commission).

2. The Anti-Bullying Commission is administratively assigned to the Finance Directorate.

1. The MobV Commission is composed of nine members: the president, four staff representatives, and four other individuals.

2. The four staff representatives, at least three of whom must be civil servants, are selected by mutual agreement between the recognized social partners. If no agreement is reached, the State Council decides on the recommendation of its personnel affairs delegation.

3. The other four persons are appointed by the State Council; at least three of them must be civil servants.

4. The president must be an expert in the field of bullying and sexual harassment. They are appointed by the State Council.

5. The POA serves as the secretariat of the MobV Commission.

1. The MobV Commission has the following powers

a) It acts as the supervisory authority over the Espace Health-Social Advisory Center pursuant to Article 3.

b) It proposes four lawyers for appointment to the Council of State in accordance with Article 8 paragraph 2.

c) It is consulted by the employer on prevention and training measures.

d) It supervises the functioning of the mechanism against bullying and sexual harassment.

e) It is informed about case statistics, case typologies, types of solutions, and anonymized results of satisfaction surveys.

f) It reports to the Council of State on the effectiveness of the mechanism and/or the implementation of prevention and training measures.

2. The remuneration for the commission members follows the rates outlined in the Ordinance on the Compensation of Members of State Commissions.

1. Proceedings regarding sexual harassment, which were initiated according to the directives of the State Council to prevent and combat sexual harassment and are still pending at the time this regulation comes into force, shall be continued under the old law.

1. The MobV Commission pursuant to Article 16 and the SGA Commission pursuant to Article 6 of the Ordinance of 24 April 2007 on Workplace Safety and Health Protection in the Cantonal Administration shall be merged by 31 December 2017.

1. The Regulation of December 17, 2002, on State Personnel (SGF 122.70.11) is amended as follows

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1. The directives of the State Council dated October 2, 2007, for the prevention and combating of sexual harassment are hereby repealed.

1. This regulation shall enter into force on 1 July 2016.