Action of a former employee against manager is a labor law case

Mar 10, 2021 Benn-Ibler Rechtsanwälte

The Higher Regional Court (Oberlandesgericht, OLG) of Vienna had to assess whether the lawsuit of a former employee against the managing director due to his statements damaging to her reputation belonged before the Labor and Social Court (Arbeits- und Sozialgericht) or constituted a "general" civil matter.

The background to the proceedings was an email from the managing director in which he alleged to third parties that an employee working in the IT company was "corrupt" and had committed criminal acts.

The managing director was of the opinion that the person employed in his company provided services for third parties during her working hours. In addition, the employee had contracted orders to herself which had previously been provided by the company.

Shortly after the email was sent, the employment relationship with the employee ended. She filed a lawsuit against the managing director and sought damages as well as an injunction and the revocation of the statements.

The managing director contested the handling of the case by the labor court senate, arguing that it was not a labor law case within the meaning of Sec. 50(1)(1) of the Labor and Social Court Act (Arbeits- und Sozialgerichtsgesetz).

The Vienna OLG dismissed the appeal. The definition of a labor law case is broad. A connection with the employment relationship can be direct or indirect, legal or factual.

The OLG saw the connection of the action with the employment relationship in the fact that the defendant managing director (with his email) accused the employee of breaches of her fiduciary duties under labor law and a competition clause. He also alleged unlawful use and exploitation of the software developed by his company and unlawful diversion of orders.

For the OLG it was irrelevant that the plaintiff did not sue the former employer but the managing director personally. The defendant was in any case the sole shareholder and managing director, so that there was economic identity between him and the company.

OLG Wien, 16 R 11/21m (04.02.2021)