OGH: Deductions for Working too Fast?

Mar 22, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has provided the following clarification: Employers are liable for lost working time caused by an employee working too fast if the employee’s working time is contractually limited to the completion of assigned tasks.

The plaintiff was employed by Österreichische Post AG as a postman (flexitime model). Before starting work, he was told that delivery staff could go home before the end of the 8-hour working day if they had completed their deliveries. The plaintiff always completed his deliveries quickly and was therefore usually able to leave work an hour earlier. The resulting negative hours on his account were always carried over. He also did extra work for colleagues, which was not credited to his flexitime account, but was paid as overtime. When the employment relationship ended, all minus hours were deducted.

The plaintiff now claimed payment of the minus hours deducted because he had been ready and willing to work at all times and was therefore also entitled to remuneration pursuant to Section 1155 (1) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB).

Pursuant to Section 1155(1), first sentence, of the ABGB, an employee is entitled to remuneration for work not performed if the employee was prepared to perform the work but was prevented from doing so by the employer.

The decision of the OGH was in favour of the plaintiff:

Under the flexitime agreement, the plaintiff could only vary the start of his working time by half an hour. The end of the daily working time was determined by the allocation and complete fulfilment of the tasks and could therefore not be influenced by the plaintiff. The plaintiff could not be accused of working too fast. Furthermore, the employer did not assign him any other tasks and he was not required to spend any time at the delivery base. The plaintiff was therefore not given the opportunity to make up for any minus hours resulting from his faster working method.

The hours lost are therefore the responsibility of the employer.

OGH 8 ObA 58/23x (15 February 2024)