OGH: Part-Time Reintegration v. Continued Employment

Mar 21, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that an agreement to return to work on a part-time basis does not automatically constitute a continuing employment relationship as defined by Section 24(9) of the Austrian Contract Staff Act (Vertragsbedienstetengesetz, hereinafter VBG 1948).

In the present case, the plaintiff had been employed as a contractual employee since 2014 and had been on continuous sick leave since November 2021. The defendant Republic of Austria informed the defendant that her employment would end on 15 November 2022 after one year of incapacity to work. The applicant then agreed to part-time work for the period from October 2022 to April 2023, pursuant to Section 20c of the VBG 1948. However, after she was again frequently absent due to illness, her employment was finally terminated with effect from 19 January 2023. Claiming that her part-time reintegration was tantamount to a continuation agreement, the plaintiff brought an action for a declaration that her employment relationship would continue.

The OGH clarified that reintegration by part-time employment requires an existing ability to work and does not correspond to an automatic extension of an employment relationship. Section 24(9) of the VBG 1948 provides that a contractual employment relationship ends after one year of continuous absence from work unless a continuation has been expressly agreed. As no such agreement had been made, neither in writing nor orally, the termination of the employment relationship remained in force. When part-time reintegration is agreed upon, there is usually no need for a continuation agreement and no waiver of the possibility of termination, as the individual is working again. Therefore, the conclusion of such an agreement cannot automatically be interpreted as a waiver by the employer of the right to terminate the employment relationship on the basis of a one-year absence from work in the event of a new illness.

The OGH thus upheld the decisions of the lower courts.

OGH 9 ObA 13/24p (22 January 2025)