OGH: When May a Termination Be Declared?

Jun 14, 2024 Benn-Ibler Rechtsanwälte

The condition of being unworthy of trust within the meaning of Section 27(1)(3) of the Austrian Employee Act (Angestelltengesetz, hereinafter AngG) is met if an employee’s behaviour has shaken the employer’s trust to such an extent that the employer can no longer be expected to continue the employment relationship.

In the case at hand, the defendant employer had dismissed the plaintiff. The reason for the dismissal had been the plaintiff’s improper and dangerous use of the company’s entrance and exit and the company’s turning area. The plaintiff also committed a serious breach of trust by disobeying the instructions of his superiors. Before the dismissal was announced, the defendant's managing director had a meeting with the plaintiff and gave him a warning. He also warned him about potential consequences under labour law.

Despite this, the plaintiff showed no signs of a sense of wrongdoing, so the defendant had reason to fear that the plaintiff would continue to fail to perform his duties properly in the future, and therefore finally dismissed him.

Der Austrian Supreme Court (Oberster Gerichtshof, OGH) stressed the following fact:

The reasons for the premature termination of the employment relationship must be asserted without delay, otherwise the right to dismiss is forfeited.

According to established case law, if an employer merely issues a warning after specific incidents become known, such a statement is interpreted as waiving the grounds for dismissal. In this case, however, the plaintiff could not assume that there had been a waiver. He had also been warned about consequences under labour law, but had shown no remorse or insight into his misconduct.

Also, employers must be given a reasonable period of time to consider the matter so that they can inform themselves about legal options. The defendant’s managing director was informed on a Friday of the facts which were to be the basis for the dismissal. Over the weekend, the general manager discussed the case with the regional manager, the board of directors, and the plaintiff’s supervisor. The announcement of the dismissal was made on the following Monday. Thus, the principle of immediacy was complied with.

OGH 9 ObA 20/24t (24 April 2024)