OGH: Further payment of wages after change to employment relationship

Sept 22, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) handled the question of whether, when a worker changes to a salaried employment relationship, the previous periods of service with the same employer are to be taken into account for the entitlement periods under Section 8 (1) of the Salaried Employees Act (Angestelltengesetz, AngG).

According to Sec. 8 (1) of the AngG, an employee is entitled to full pay in the event of illness or misfortune for a period of eight weeks if the employment relationship has lasted at least one year.

In the present case, the plaintiff was employed as a worker by her employer (defendant) for several months (since September 17^th, 2018). Thereafter, her employment relationship was converted into a salaried employment relationship as of May 1^st, 2019. A short time later, she was on sick leave for several months. The employer continued to pay her full salary for six weeks and then half salary for a further four weeks.

The plaintiff now requested further continued payment of her wages. Since she had already been working for the defendant without interruption since September 17^th, 2018, she was entitled to an extended remuneration of eight weeks from that date.

The defendant contested this, as the day on which she was taken on as an employee (May 1^st, 2019) was to be regarded as the beginning of the working year and the entitlement to eight weeks' continued payment of remuneration had not yet arisen.

Both the court of first instance and the court of appeal shared the plaintiff's view. So did the OGH:

Firstly, it found that the legislative material to Sec. 8 (1) AngG emphasised the harmonisation of the continued payment of wages of salaried employees and workers. The OGH decided, in agreement with the prevailing opinion in the literature, that "periods of service" within the meaning of Sec. 8 (1) AngG are all periods of ongoing employment with the same employer, without distinction as to whether they are worker or have salary employment.

The complaint was therefore upheld.

OGH 9 ObA 72/21k (28.07.2021)