OGH: Criticism of Corona measures alone does not constitute a worldview

Mar 4, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that a dismissal is in principle permissible if the employee is dismissed because of her critical attitude towards the COVID-19 measures and her refusal to wear a mask.

In the case at hand, the plaintiff challenged her dismissal because, in her view, she was dismissed because of her worldview. Dismissal on the grounds of direct and indirect discrimination on the grounds of belief is contestable (Section 26 para 7 in conjunction with Sec. 17 para 1 number 7 of the Equal Treatment Act – Gleichbehandlungsgesetz, GlBG).

According to the OGH, criticism of measures to combat COVID-19 is not in itself a worldview. This includes (only) ideological, political and similar guiding views of life and the world as a whole. These are not scientific systems, but interpretations of the basic structure, modality and function of the world as a whole.

The OGH had already previously decided that, for example, criticism by an employee of Austrian asylum legislation and practice is not a worldview.

The plaintiff argued that the "coronavirus is about as dangerous as the influenza virus" and that the Constitutional Court had already repealed 22 pieces of legislation and ordinances in connection with COVID-19. She therefore had the worldview "that constitutional laws should be upheld and she should not be removed from employment because of concern for her physical health". However, the trial court had already recognised that this was not a worldview, but merely possible factual arguments for or against COVID-19 measures.

With this argument, the plaintiff was in line with cases of critical attitudes towards the Austrian asylum system.

The contestation of dismissal was therefore not granted.

OGH 9 ObA 130/21i (25.11.2021)