Continued Remuneration

Oct 10, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has determined that an injured employee does not possess quota priority over their employer in instances where the employer has continued to pay remuneration after a workplace accident and subsequently seeks recourse against the responsible party for damages.

In the original case, the plaintiff’s employee had been involved in a traffic accident resulting in injury. The employee was temporarily unable to work due to these injuries, and the plaintiff initially paid statutory continued remuneration during this period. Afterwards, the employee received sick pay from social security. The accident was determined to be the result of actions by both a third party and the employee. The contributing factors on the part of the employee included operating the vehicle at an excessive speed despite limited visibility, failure to activate low beam headlights, and a delayed response time.  

The plaintiff sought compensation from the liable party for continued wages and additional payments resulting from the accident

The OGH indicated that, under Section 1358 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB), when an employer continues to pay wages, the employee’s compensation claims against the liable party are transferred to the employer. If the employee shares fault, the employer can still seek proportionate recourse.

The decisive factor was whether the employee was entitled to a preferential right vis-à-vis the employer, i.e., whether he had priority access to the remaining damages. The OGH denied this with reference to established case law: a preferential right can only exist if it is provided for by law. While social security has such a right under certain conditions pursuant to Section 332 of the Austrian General Social Security Act (Allgemeines Sozialversicherungsgesetz, ASVG), this does not apply to the employer, who merely assumes the employee’s claims pursuant to Section 1358 of the ABGB.

The OGH partially upheld the plaintiff’s appeal and ordered the defendant to pay EUR 12,069.19 plus 4% interest; the remaining claim of EUR 6,157.02 was dismissed.

OGH, 3 June 2025, 2 Ob 37/25t