OGH on Notice Periods in Hospitality

Nov 8, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has decided whether employees invoking the statutory notice period must prove the ineffectiveness of the shorter collective agreement notice period, or whether employers invoking the shorter collective agreement notice period bears the burden of asserting and proving that the collective agreement provision is applicable in the specific case due to the seasonal nature of their industry sector.

In the case at hand, the plaintiff had been employed by the defendant as a full-time waiter since May 2021. The employment relationship was governed by the Austrian Collective Agreement for Hotel and Restaurant Employees. The employment relationship was terminated by the employer on 21 October 2021.

The plaintiff was seeking payment of more than EUR 10,000 gross. This included severance pay for the period 9 November 2021 to 31 December 2021, holiday pay and annual remuneration. The plaintiff claimed that the defendant had violated the notice period and does not operate a ‘seasonal business’. Therefore, the statutory notice period pursuant to sec. 1159 (2) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB) applies.

The OGH ruled as follows:

According to the general rules on the burden of proof, each party must assert and prove the conditions of the rule in its favour, and the burden of proof is on the party claiming that there is an exception to a general rule.

If an employee who has been dismissed by his employer with reference to the two-week period of notice stipulated in the collective agreement claims compensation for unfair dismissal on the basis of the statutory period of notice in Section 1159(2) of the ABGB, it is not the employer who has to assert and prove that the industry is seasonal and that the collective agreement provision is therefore legally valid. Rather, the employee bringing the action bears the burden of asserting and proving in court that non-seasonal enterprises predominate in an industry and that the collective agreement provision is therefore invalid.

If it is not possible to determine whether the industry is seasonal, the burden of proof lies with the employee, who has the burden of asserting and proving his claim. In this case, the statutory notice periods and deadlines of Section 1159(2) ABGB are not to be used as a basis for decision-making.

9 ObA 57/24h (19 September 2024)