OGH on Wages after Termination by Mutual Consent

Jul 14, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that it is an employee’s objective inability to work, not the date on which a doctor’s certificate of sickness is issued, that is relevant to continued payment of salary.

Following a dispute with the workshop manager, the managing director of the defendant (employer) offered the plaintiff (employee) the amicable termination of his employment relationship with effect from the following week. The claimant clearly and unequivocally agreed to this. The claimant did not indicate that he was feeling ill or unwell at the time. The plaintiff then drove home, where he felt unwell and dizzy. In the afternoon of the same day, he went to his family doctor, who wrote him off for the day. When the plaintiff then returned to his employer to sign the written copy of the termination agreement, he refused to do so and handed over the sick note.

The plaintiff now claimed continued payment of his wages. The termination agreement had been terminated by mutual consent during a period of incapacity for work. He was therefore entitled to continued payment of his salary for the statutory period under Section 5 of the Continued Payment of Wages Act (Entgeltfortzahlungsgesetz, EZFG).

The first-instance court dismissed the claim, while the appellate court granted continued pay.

The OGH found no legal basis for the action:

The decisive factor in the case was whether the plaintiff was already incapacitated for work at the time when he and the defendant’s managing director agreed to terminate the contract by mutual consent. First of all, the court held that the employer - in the case of Section 5 EFZG - is not required to have knowledge of the incapacity for work. What matters is the objective existence of the incapacity for work. Although the incapacity for work is only documented by the medical certificate, it can be assumed that the incapacity for work already existed at the time of the retroactive medical certificate. However, the employer must be able to prove that there was an objective inability to work independently of the sick leave.

In the original case, it could not be established that the employee was already incapacitated when the dismissal was agreed. Therefore, there was no claim.

OGH 8 ObA 4/23f (24 May 2023)