Invalid Termination – Employment Continues

Mar 5, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently ruled on the termination of the employment contract of a plaintiff who was a beneficiary of the Austrian Disability Employment Act (Behinderteneinstellungsgesetz, hereinafter BEinstG).

A series of terminations ended up before the labour court

The defendant terminated the plaintiff's employment on three separate occasions pursuant to the BEinstG. In response to each termination, the plaintiff initiated legal proceedings, requesting a declaration affirming the continued existence of the employment relationship, among other claims.  

The plaintiff is seeking a declaration affirming the continued existence of the employment relationship. The primary issue in these proceedings concerns the termination dated 31 August 2017, which was predicated on purported grounds for dismissal.

No basis for termination found  

The court of appeal affirmed the original judgment, which recognized the plaintiff’s principal claim for a declaration establishing the employment relationship. It determined that the grounds cited for termination were not present at the time the notice was served. Consequently, the extraordinary appeal was dismissed on the basis that no substantial legal questions were raised.

Dismissals must be evaluated substantively and procedurally

The court of appeal held that, even with Disability Committee approval under Section 8(2) of the BEinstG, labour and social courts must independently review both the substance and form of a disabled person’s dismissal. As the extraordinary appeal failed to challenge this core reasoning, it did not present significant legal issues under Section 502(1) ZPO and was therefore dismissed.

9 ObA 78/25y (27 January 2026)