OGH on Dismissals after Warning

Oct 14, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has made it clear that a dismissal is still in due time if the human resources department issues the dismissal only after the end of a night shift.

In the original case, the plaintiff was employed as a deputy shift leader by the defendant company (employer). The plaintiff issued an instruction to an employee, with which the latter refused to comply. The plaintiff perceived this to be a cop-out. A verbal altercation ensued, in the course of which the plaintiff grabbed the other employee by the neck and choked him. The shift supervisor who rushed to the scene was not authorised to dismiss or suspend employees. However, he informed the deputy floor manager, who was also not authorised to issue dismissals. He did, however, have the authority to issue temporary leaves of absence. He therefore ‘warned’ the plaintiff and made it clear that physical assaults would not be tolerated, but nevertheless asked him to finish his shift.

The next day, the plaintiff was asked to report to the human resources department, where he was given a dismissal notice.

The plaintiff eventually sought severance pay based on the fact that his dismissal was only pronounced the next day and, what’s more, that he had been asked to finish his shift.

The lower courts found in favour of the plaintiff because his termination of employment had not been immediate, and by asking him to finish his shift he had been given to understand that, despite his actions, it would not be unreasonable to work with him in the future.

The Supreme Court has now clarified as follows:

A dismissal must be issued immediately after the reason for dismissal (in this case, the physical assault) has been established. However, this principle must not be overstressed.

In the case at hand, the plaintiff could not assume that the deputy manager, who was not authorised to issue dismissals, had conclusively waived the assertion of the reason for dismissal by his informal warning. The fact that the deputy manager did not order the plaintiff to leave cannot be understood to mean that the matter was thereby definitively settled, since the manager was not in a position to decide on dismissals.

The dismissal, therefore, was issued in due time.

OGH 9ObA48/22g (31 August 2022)