OGH on Limitation Periods for Dismissal Compensation

Feb 2, 2024 Benn-Ibler Rechtsanwälte

According to Section 34(1) of the Austrian Salaried Employees Act (Angestelltengesetz, hereinafter AngG), claims for compensation for premature dismissal must be asserted in court within six months. Otherwise, they are void.

The plaintiff had been in the defendant’s employ since 2011. He was dismissed with effect from 30 April 2021, against which the plaintiff brought an action to contest the dismissal. In the event that the dismissal was invalid, the defendant gave notice of termination at the beginning of June 2021.

A year later, at the end of June 2022, the claim for annulment of the dismissal was granted. The plaintiff then filed another action in August 2022, seeking to have the dismissal declared null and void. He also claimed payment of the monthly salaries due to him since May 2021.

According to the defendant, the appeal against the dismissal had been filed too late and the compensation for the dismissal had lapsed.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled as follows:

Section 34(2) AngG provides that the limitation period commences on the date of termination of the employment relationship. However, according to OGH case law, the limitation period for claims that become due after the termination of the employment relationship only begins to run when the claim can be asserted.

At the time of the dismissal, the court of first instance had not yet ruled on the pending appeal against the dismissal. As the challenge to the dismissal is a legal action, the dismissal is suspended until a decision has been made. If the appeal is successful, the dismissal will be declared invalid with retroactive effect.

If the action for annulment is upheld, the claims for arrears of remuneration pursuant to Section 1155 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) also become due. In this case, the entitlement to compensation did not arise until the ruling became final and absolute. As a result, the claim for severance pay in August 2022 had not yet lapsed.

However, the period for challenging a dismissal under Section 105(4) of the Austrian Labour Law Compilation (Arbeitsverfassungsgesetz, ArbVG) begins to run on the date specified in the Act, irrespective of the pendency of the challenging proceedings.

OGH 9 ObA 77/23y (23 November 2023)