Does Attending a Party on Sick Leave Justify Dismissal?

Jan 12, 2024 Benn-Ibler Rechtsanwälte

In the event of illness and subsequent incapacity for work, employees must conduct themselves in such a way as to ensure that their ability to do their job is restored as quickly as possible. Conduct that may adversely affect the course of the illness or delay the recovery process may justify dismissal.

The plaintiff had been employed by the defendant for more than 20 years as a contract worker. From 19 July 2022 he was on sick leave due to depression. The doctor treating him did not impose any restrictions on his going-out hours nor did she prescribe bed rest for the plaintiff. On 6 August, the applicant attended an evening party organised by his motorbike club.

On 24 August, the defendant prematurely terminated the plaintiff’s employment. The employee then sought a declaration that the employment relationship would legally continue beyond 24 August.

The court of first instance dismissed the case, concluding that the plaintiff could not rule out the possibility that his participation in the party would jeopardise his healing process.

The court of appeal reversed the decision and found in favour of the plaintiff.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) upheld the decision of the court of appeal by clarifying the following:

An employee who is on sick leave cannot be in serious breach of the doctor’s instructions. In this case, however, the plaintiff's doctor did not give him any instructions as to how to conduct himself while on sick leave. The plaintiff was merely advised to go for walks and to meet up with work colleagues.

As the court of appeal also correctly found, the plaintiff did not jeopardise the healing process of his depression by attending a late-night party. It is not apparent how attending a party could delay the healing process of a mental illness. Therefore, there was no objectively negligent behaviour on the part of the plaintiff.

9 ObA 67/23b (27 September 2023)