OGH Rules on Forfeited Holiday Leave

Oct 18, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled on the question of whether the forfeiture of holiday leave due to incapacity for work due to illness is limited.

In the case at hand, the plaintiff had been employed by the defendant as a contract employee since 2003. Their employment relationship is governed by the Contractual Employee Regulations of the City of Linz (Vertragsbedienstetenordnung 2005, hereinafter VBO) in Upper Austria.

After being asked to take his remaining holiday leave from 2020 and being informed that his leave time would lapse if not taken, the plaintiff agreed with the defendant to take holiday leave from 14 November to 30 December 2022. However, as the plaintiff unexpectedly had to undergo surgery in early September and was subsequently on sick leave for more than 10 months, he was unable to take or use the previously agreed upon holiday leave.

The plaintiff has sought a declaration that, at the time of his claim (6 July 2023), he was entitled to a further 102.06 hours of unused and unchallengeable leave dating back to 2020 in addition to the 102.06 hours conceded by the defendant, giving a total of 204.12 hours. The defendant contested this and asked the court to dismiss the claim, arguing that the leave to which the plaintiff was entitled had expired.

The first instance court granted the application. However, the court of appeal dismissed it. The OGH has now allowed the plaintiff to appeal.

According to Section 77 (1) of the Statute of Municipalities of Upper Austria Employees Act (Oö. Statutargemeinden-Bedienstetengesetz, Oö StGBG), half of the leave that not yet taken is forfeited after two years, as does the remainder after three years from the end of the leave year in which it arose. Under Section 1a of the cited Law, the employer must give timely and verifiable notice of the impending expiry of the leave.

The analogous applicability of the provisions of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) on the suspension of the limitation period to the employment relationships of contractual employees under the City of Linz’s VBO 2005 means that the expiry of the holiday leave entitlement is suspended from the beginning of the sick leave if the contractual employee was unable to take and use their holiday leave because of inability to work due to illness.

OGH 9 ObA 32/24g (26 June 2024)