Austrian OGH on Dismissing Employees Unfit for Work

Feb 14, 2025 Benn-Ibler Rechtsanwälte

Pursuant to Section 42(2)(2) of the WrVBO 1995 (Wiener Vertragsbedienstetenordnung, Rules for contract staff in Vienna) an employer is entitled to dismiss an employee if the employee is unfit for work for health reasons. This is particularly the case if an employee takes sick leave and is unable to work to an above-average extent.

The plaintiff had been employed by the defendant’s funeral home for more than 30 years. Due to a physical health problem, he was only able to carry out ‘light work’ for over a year. He could no longer perform his duties as pallbearer.

The light duties were only intended to provide the plaintiff with a temporary opportunity to work until he had recovered, and he was informed of this on several occasions. The defendant did not need an employee who could only perform lighter work for such a long period and, for organisational reasons, this was not possible in the long term. It was for this reason that the defendant dismissed the plaintiff.

The plaintiff’s claim was for a declaration that there was no ground for dismissal within the meaning of section 42(2)(2) of the WrVBO 1995.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has made the following clarification:

Employers are obliged to assign a partially incapacitated employee to lighter work if possible within the scope of an employer’s duty of care. This obligation applies in particular in cases where the employment relationship has already existed for a long period of time.

However, despite an employer’s duty to establish and provide social security, employers are not obliged to restructure their business and create a new, previously non-existent job for a contract employee who is permanently and not only temporarily incapacitated by illness, by reallocating work in a way that corresponds to the reduced capacity of an employee.

The fact that the defendant had employed the plaintiff for a period of one and a half years in such a light work capacity does not mean that the employer carried out a reorganisation of his business. The arrangement was a temporary social intervention.

As a result, the dismissal was effectively implemented and the extraordinary appeal was dismissed.

OGH 8 ObA 53/24p (14 January 2025)