OGH: Consequences of a coronavirus-related business closure

Jun 2, 2021 Benn-Ibler Rechtsanwälte

The duration of a fixed-term employment relationship may be fixed in terms of a specific date or linked to a specific event. The wording "end of the winter season" is an objectively determinable event that also occurs in combination with an officially imposed closure. The Supreme Court did not object to the opinion of the lower instances, according to which the official closures in the course of the Corona measures are to be classified as the "end of the winter season".

It is sufficient for the limited duration of an employment relationship if the end date is objectively determinable and cannot be arbitrarily influenced by the contracting parties. Also for the collective agreement for the employees of the Austrian cable cars, which is applicable in the present case, the objectively determinable end date is sufficient for the limitation of the term.

The limitation "until the end of the winter season (until 13 April 2020 at the latest) was not disputed by the plaintiff. The combination of an objectively determinable event and an appointed end date can also be validly agreed in principle. The subject of the appeal proceedings was the question of whether the officially ordered closure due to the SARS-CoV pandemic on 15 March 2020 was to be understood in the sense of "end of the winter season".

The plaintiff's argument that the "end of the winter season" should only be understood as occurring in the ordinary course of events was not accepted. The "end of the season" or "end of the winter season" is an objective event that occurs independently of the parties' influence at a point in time that cannot be determined in advance. It is irrelevant whether the event is due to weather conditions or an official order.

OGH 9 ObA 118/20y (24.03.2021)