Austrian OGH: Pastoral Assistant Can be Fired after Reporting a Crime

May 30, 2025 Benn-Ibler Rechtsanwälte

Churches and religious societies are also subject to the general laws of the state. However, the provisions of Part II of the Labour Constitution Act (ArbVG) do not apply to companies that serve the denominational purposes of a legally recognized church or religious society.

In the case at hand, the plaintiff, who had been employed as a pastoral assistant by the Roman Catholic Church, claimed that she had discovered legal violations within the church and subsequently filed a criminal complaint. Shortly thereafter, her employment was terminated. She contested the dismissal, arguing that it was an inadmissible response to her report and a violation of the Austrian Whistleblower Protection Act (HinweisgeberInnenSchutzgesetz, hereinafter HSchG) and the right to freedom of expression (Article 10 of the European Convention on Human Rights).

The court of first instance dismissed the case. The appeal court upheld the decision. Now, the extraordinary appeal to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has also been rejected.

The OGH clarified that certain labour law provisions do not apply to institutions serving the religious purposes of a legally recognised religious community if they are incompatible with the nature of that community (Section 132(4) of the Austrian Labour Constitution Act, Arbeitsverfassungsgesetz, hereinafter ArbVG). As the plaintiff’s work involved the proclamation and dissemination of ‘salvation truths’, her role as a person representing a particular ideological tendency) was justified. Such individuals are not protected against dismissal under Section 105 of the ArbVG.

The plaintiff claimed that she had been dismissed for reporting a criminal offence and invoked the protection afforded by the HSchG and the ECHR’s decision in the Heinisch v. Germany case. However, the OGH found that the HSchG only covers certain areas of law, not including general criminal or financial law.

Referring to the ECHR judgment in Heinisch was also of no help to the plaintiff since that decision did not concern an employment relationship within a religious community. The OGH ruled that church autonomy (Art. 15 StGG) and freedom of religion (Art. 9 ECHR) should take precedence in this instance. Currently, there is no indication that this fundamental rights assessment will change due to national or European developments.

Therefore, the appeal was dismissed as it did not raise a significant legal issue.

OGH 8 ObA 58/24y (27 February 2025)