OGH: Failure to Properly Record Working Hours: Grounds for Dismissal

Jan 5, 2024 Benn-Ibler Rechtsanwälte

It is not just an administrative offence to record working hours untruthfully. It is also a serious breach of trust and can be grounds for dismissal.

When the coronavirus pandemic began, the defendant employer asked employees to work from home on Fridays. On Monday, the plaintiff (employee) flew to his home in Tenerife in the morning. Therefore, he could not start work until noon. Nevertheless, the plaintiff falsely entered working hours from 9:00 to 17:15 in the time recording system.

The defendant then announced that the plaintiff employee was being dismissed. The plaintiff’s argument was that there was no financial benefit to him as a result of the false entry. A few days earlier, he had worked overtime, which he had failed to record in the system used to record his working hours.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled as follows:

When offering remote work, employers rely on the accuracy of their employees’ records because work performance is not monitored. Employees are in a special position of trust.

The plaintiff’s conduct met the criteria of untrustworthiness within the meaning of Section 27(1)(3) of the Austrian Employee Act (Angestelltengesetz). This includes any behaviour that shakes the confidence of the employer to such an extent that the employer cannot reasonably be expected to continue to employ the employee.

The fact that the plaintiff would have been entitled to attend to private obligations until midday anyway is irrelevant. The pretence of having worked cannot be justified by this circumstance. Similarly, the plaintiff cannot successfully invoke a lack of intent to cause harm. Even without the occurrence of damage or the intention to cause damage, the offence of lacking trustworthiness is fulfilled.

If the dismissal is not communicated immediately, it is considered to be late. In the case at hand, the defendant issued the dismissal one day after the breach of trust became known. The principle of promptness was therefore not breached.

9 ObA 58/23d (27 September 2023)