OGH: Sexual Harassment Justifies Immediate Dismissal

May 11, 2024 Benn-Ibler Rechtsanwälte

An employee can be dismissed without prior warning if they engage in verbal sexual harassment, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled.

The plaintiff is a disabled person within the scope of the Austrian Disabled Persons Employment Act (Behinderteneinstellungsgesetz, hereinafter BEinstG) and has been employed by the defendant company since 1987. In the summer of 2022, the plaintiff made a number of sexually offensive remarks to an 18-year-old female intern. The intern reported this behaviour to the human resources manager at the end of her internship, whereupon the plaintiff was dismissed without notice.

The plaintiff filed an appeal against his dismissal. There had been no statement of reasons for the dismissal and no warning had been given before the dismissal was announced. At best, the dismissal could be justified under Section 8 (4)(c) of the BEinstG, but this was not possible due to the lack of approval by the Federal Social Welfare Office (Bundessozialamt).

The defendant countered that the plaintiff had sexually harassed the holiday intern by making verbal comments and had thus committed a ground for dismissal pursuant to Section 82 (g; 1st case) of the Austrian Industrial Code 1859 (Gewerbeordnung).

Although the lower courts found for the defendant and that the plaintiff’s behaviour constituted sexual harassment, dismissing the plaintiff without warning was not permissible.

The OGH, however, ruled that his immediate dismissal had, in fact, been justified.

Even though the plaintiff is a long-serving employee and sexist comments are often made in this predominantly male company, the plaintiff’s behaviour makes his continued employment unacceptable. Irrespective of the usual conversational tone within the company, the plaintiff must have realised that his comments to an 18-year-old intern were inappropriate. Furthermore, the employer also had a duty of care towards the other female employees as well as possible future interns.

OGH 8 ObA 70/23m (22 March 2024)