OGH on Remuneration Set-Offs

Jan 12, 2024 Benn-Ibler Rechtsanwälte

In Austria, employees are entitled to a remuneration even if they are released from work. However, remunerations earned elsewhere must be set off against the original entitlement to remuneration. The offsetting rule of Section 1155 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) is decisive and can generally be waived.

The plaintiff had been employed by the defendant for more than five years when the employer intended to terminate the employment relationship due to reorganisation measures. On 11 November 2020, the parties agreed to terminate the employment relationship by mutual consent as of 30 April 2021. They also agreed to an immediate leave of absence and salary payment until the termination date. The parties did not discuss the plaintiff’s obligation to terminate the employment relationship early or to notify the defendant if she entered into a new employment relationship before the termination date.

The plaintiff entered into a new employment relationship in March 2021. For this reason, the defendant refused to pay the plaintiff her wages for March and April, taking the view that the plaintiff should be credited with her new salary pursuant to Section 1155 of the ABGB.

The plaintiff then demanded payment of just under EUR 12,000 (2 monthly salaries including special bonuses).

The following considerations were made by the OGH:

Waiver of Section 1155 of the ABGB is possible if the parties have agreed on a deviating contractual provision. In the present case, however, no such agreement was made and therefore the provision cannot be waived.

There is also no implied contractual exclusion of Section 1155 ABGB, as there is insufficient evidence to assume an exclusion. A strict standard must be applied to this assessment in accordance with Section 863 ABGB.

As a result, the plaintiff is entitled to her remuneration for the entire period of her leave of absence, but she must allow her new earnings to be offset against her remuneration entitlement.

9 ObA 52/23x (27 September 2023)