OGH: No individual protection against dismissal during short-time work

Jan 28, 2022 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) confirms: Due to individual social partner agreements on short-time work, no individual protection against dismissal of an employee is stipulated.

In the case at hand, the OGH dealt with an individual social partner agreement that was later extended to the plaintiff employee. The plaintiff was not affected by short-time work in the first lockdown - like a large part of the workforce - but was supposed to be covered by the agreement through a later extension of the individual agreement to the entire workforce. Due to subsequent "special questions" and comments visible to all through a chat room, as well as an announcement of seeking legal advice, the defendant - the employer - decided to terminate the employment. The directors perceived the behaviour as an embarrassment and nuisance. The plaintiff sought compensation for termination.

The OGH held that the appeal was not justified. The plaintiff based his claim on point IV of the social partner agreement, which was based on Section 37b of the Labour Market Service Act (Arbeitsmarktservicegesetz, AMSG), which not only provided for an obligation to retain the employer's workforce, but also for a period of one month. However, according to the OGH, such an agreement primarily follows labour market policy objectives and is not aimed at granting an employee individual protection against dismissal, especially since the general protection of the status quo according to Sec. 105 of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG) remains unaffected. The wording of the law also refers to the number of "employees".

In general, the OGH held that Sec. 37b of the AMSG (in connection with the specific termination agreements concluded) does not render ineffective a notice of termination given during short-time work or the retention period. In this respect, the assessment of the existence of "operational requirements" according to Sec. 105 para 3 2 lit b ArbVG is decisive for a possible challenge of termination.

8 ObA 48/21y (22.10.2021)