OGH: No Dismissal for One-Time Negligence

Oct 14, 2022 Benn-Ibler Rechtsanwälte GmbH

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with dismissal under Section 27 (1), last case, of the Salaried Employees Act (Angestelltengesetz, AngG) after an incorrect administration of adrenaline.

The plaintiff was employed as a physician at a hospital. During the treatment of a patient, the plaintiff instructed a registered nurse to administer 1 mg of adrenaline. However, the nurse understood the doctor to say “noradrenaline”. Even after the nurse had asked again, she had still understood the doctor to say noradrenaline. As the patient was no longer able to breathe and, assuming that the ampoule contained adrenaline, the plaintiff administered the prepared ampoule. With an anaphylactic shock, a smaller dosage should have been administered by IV and not by injection (as the plaintiff had done). The defendant subsequently dismissed the plaintiff without prior warning for breach of supervisory duties.

The plaintiff asserted claims for dismissal. The defendant filed a motion to dismiss.

While the trial court granted the plaintiff’s motion, the appellate court upheld the defendant.

Eventually, the Supreme Court issued the following ruling:

The reason for dismissal under Section 27 (1), last case, the AngG requires that there be an act or omission which, due to its nature and repercussions on an employment relationship, makes it obvious that the employee is deemed unworthy of the trust placed in them by the employer and that the employee will no longer faithfully fulfil their duties. However, a mere violation of trust is not sufficient. Continuing the employment relationship must be deemed to be unacceptable for the employer. However, the plaintiff took the view that no duty of supervision on the part of the doctor had been violated. Pursuant to Section 49 (3) of the Austrian 1988 Medical Practitioners Act (Ärztegesetz, ÄrzteG 1988), a doctor may delegate duties to members of other health professions in individual cases, provided that such duties lie within the respective individual's scope of activities. This had been the case here. Pursuant to Section 49 (3) of the 1988 Medical Act, the doctor’s duty of supervision does not apply in its entirety to such a sub-delegation. Since no duty of supervision had been breached and this one-off case of negligence had not been so severe as to render the employment relationship untenable, the decision of the court of first instance was to be upheld.

OGH 9 ObA 75/22b (31 August 2022)