OGH: Recreational Value and Rest-Period Compensation

Jan 12, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that recreational value can be compensated as damages for breaches of minimum rest periods.

In the case at hand, the plaintiff had been employed as a school caretaker and manager of the neighbouring Volkshaus community centre under a public service contract. He was on duty from 6 a.m. to 1 p.m., from 4 p.m. to 6 p.m., as well as from 6 p.m. to 10 p.m. at his official residence in the school building. During this time he had to be available for clubs using the gym.

In his lawsuit, he sought compensation for substitute rest periods not granted in the years 2017 to 2018, claiming that his daily and weekly rest periods were regularly exceeded due to the additional services he had to perform at the Volkshaus and in the school gymnasium in addition to his normal working hours because of numerous events and functions. He was not granted the substitute rest periods to which he was entitled pursuant to Sections 58 et seq. of the Upper Austrian Statutory Municipal Employees Act 2002 (Statutargemeinden-Bedienstetengesetz, hereinafter StBGB 2002). He based his claim for damages on the Austrian Public Liability Act (Amtshaftungsgesetz, hereinafter AHG) and on the direct applicability of the European Working Time Directive.

The OGH ruled partially in favour of the school caretaker:

If the rest provisions of Directive 2003/88/EC are infringed in a public employment relationship without this being compensated within the framework of the employment relationship (e.g. by substitute rest periods), the employer is liable for the culpable breach of duty of care under Section 1 AHG.

There was no failure to rescue under Section 2(2) of the AHG. On the one hand, an appeal against the decision to refuse the substitute rest periods would have been futile on the basis of the case law of the Austrian Administrative Court (Verwaltungsgerichtshof). Secondly, the plaintiff cannot be criticised for not having objected to the duty rosters and overtime orders. This would have required the employee to proactively ensure compliance with minimum rest periods, which is the employer’s responsibility.

According to the principle of effectiveness under EU law, compensation must cover for the recreational value of the lost rest periods in addition to remuneration for any additional services. The assessment can be based on the average remuneration for the lost rest period.

OGH 1 Ob 82/23z (23 October 2023)