OGH: News on Holiday Leave Limitation

Aug 25, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that holiday leave cannot be time-barred if employers do not fulfil their duty to notify and urge employees to take their leave.

The plaintiff had been employed by the defendant since 2003 as a gamekeeper and later as an estate manager, working seven days a week for the first defendant and later for the second defendant. In his absence, temporary staff took over, but they lacked the knowledge and experience to fully take over the plaintiff’s duties. The plaintiff was not urged by the employer to use up his leave, nor was he notified of the impending limitation period. As the only employee with the necessary training and experience, the plaintiff’s work was under constant heavy pressure. Since 2003, he had not used up all of his leave entitlement in any year, and sometimes he had used up only two days of leave per year.

The plaintiff now claimed default interest on holiday pay already received and on further holiday pay. The defendants argued that, under Section 4(5) of the Austrian Leave Act (Urlaubsgesetz), a claim for holiday pay is time-barred two years after the end of the holiday year in which the claim arose.

The OGH found in favour of the plaintiff:

In 2018, the European Court of Justice (ECJ) ruled on the Working Time Directive 2003/88/EC that leave entitlement is not time-barred if the employee did not have the actual possibility to take the leave (ECJ C-684/16, Max Planck Society). In a new decision (C-120/21, LB v TO), the ECJ ruled that holiday entitlement is not time-barred if the employer did not actually put the employee into a position to take their holiday. Now, the employer is obliged to urge employees to take their leave and to point out the consequences of the limitation period. If the employer fails to do so, the holiday entitlement cannot be time-barred. 

OGH 8 ObA 23/23z (27 June 2023)