Phased Return, Full Extra Benefits

Mar 8, 2024 Benn-Ibler Rechtsanwälte

A phased return to work after absence under Section 13a of the Austrian Act on the Adaptation of the Law on Employment Contracts (Arbeitsvertragsrechts-Anpassungsgesetz, AVRAG) is not considered to be a partial sick leave, but instead means that the employee is fully fit to work.

In the case at hand, the plaintiff’s employment relationship was governed by the Austrian Collective Agreement for Employees of Banks and Bankers (Kollektivvertrag für die Angestellten der Banken und Bankiers, KV). After a long period of sick leave, the employee had agreed with the defendant employer a phased return to work at 50% of her weekly working hours under the collective agreement for a period of six months. During her phased return to work the plaintiff only received pro-rated extra benefits.

In her claim, the plaintiff sought the remaining balance in extra benefits based on Section 29(6) of the collective agreement. The defendant contested the claim on the grounds that the above-mentioned provision only governs the financial aspects of sick leave, but does not pertain to phased returns.

Section 29(6) of the collective agreement states: ‘Extra benefit payments under the collective agreement in accordance with Section 12 (1) shall be paid in full if the entitlement to regular remuneration is cancelled in whole or in part due to long-term illness.’

The court of appeal dismissed the claim, unlike the court of first instance which held that Section 29(6) of the collective agreement governs the remuneration of employees in the event of illness and therefore cannot be applied to the case at hand. The Austrian Supreme Court (Oberster Gerichtshof, OGH) upheld the decision of the court of appeal, adding the following:

The claimant is entitled to a reduced salary in line with the agreed reduction in working hours for the duration of her phased return to work. She shall also receive the phased-return-allowance, to which she is entitled. Employees are entitled to full extra benefits if they are no longer entitled to continued remuneration. In the case of a phased return to work, however, employees are entitled to a pro-rata extra benefits, regular remuneration, and a phased-return-allowance.

OGH 9 ObA 104/23v (24 January 2024)