OGH: Compensation in case of exclusion from a private school
In the case at hand, the Supreme Court (Oberster Gerichtshof, OGH) dealt with claims for damages of the plaintiff due to the termination of school enrolment by the defendant for a reason agreed in the school enrolment contract under private law pursuant to Section 33 para 8 of the School Education Act (Schulunterrichtsgesetz, SchUG). With the school enrolment contract, the provider of a private school has undertaken to fulfil a claim under public law. Therefore, in the case of claims arising from unjustified termination of the contract, legal action against the school's provider is admissible.
The OGH agreed with the lower court that the recipient, who received an erroneous notice of withdrawal or termination, had a right of choice to fulfil the contract. However, according to the OGH, claims for damages are not excluded even if the recipient does not accept the invalid declaration of termination (cf. Sec. 918 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB). The recipient of the declaration is rather granted damages for non-fulfilment, including possible economic consequences of an unlawful refusal to attend school, if the contract is still valid.
The claim for damages rejected by the lower court was based on labour law case law. According to this, the employee can choose to assert special protection against termination or dismissal and demand the continuation of the employment relationship as well as the contractual remuneration claim, or to accept the legally invalid unilateral declaration of termination, to terminate the employment relationship retroactively and to claim compensation for dismissal. In doing so, he is bound by his declaration.
Unlike the Court of Appeal, however, OGH limited this case law to situations in which a special protection of the continuity of an employment relationship exists, for example for apprentices, pregnant women or employees after a transfer of business. For other contractual relationships, it could not be derived from this that the choice to continue the contract, irrespective of an unjustified termination by the contractual partner, excludes claims for damages.
The action initially brought by the pupil for a declaration that the expulsion from school was invalid, that the school enrolment contract was valid and that the plaintiff was to be reinstated in school, therefore did not prevent him from later asserting a claim for damages.
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