In a business which is subject to works council representation (five employees with voting rights), employees are subject to general protection against termination. Accordingly, employees can only be terminated after the obligatory preliminary procedure under Labor Constitution Law has been carried out. For this purpose, the employer must inform the works council in due time before giving notice of termination. The works council then has the right to consult with the employer. Within one week, the works council has the option of (i) approving the termination, (ii) objecting to it or (iii) remaining silent about it.
If the preliminary procedure is not complied with, the termination is invalid. The notice of termination does not have to be given immediately afterwards, but there must still be a temporal and factual connection, otherwise a new preliminary procedure must be carried out.
When such a connection can be affirmed, was now clarified by the Austrian Supreme Court in its decision of 2 September 2021, 9 ObA 86/21v.
In the present case, the works council gave its approval to the termination of the plaintiff employee on 16 June 2019. On 27 June 2019, the defendant employer gave notice of termination to the employee, with effect on 15 August 2019. The employee stated that she had suffered a miscarriage on 24 June 2019 and submitted a medical certificate as proof thereof. In this context, it should be mentioned that a termination under the Maternity Protection Law (“Mutterschutzgesetz”) after a suffered miscarriage before the expiration of four weeks is qualified as legally invalid. On 28 July 2019, the works council was informed that the termination had not become effective due to the circumstances in question, but that it would be issued again as soon as the protection period had expired.
The employee was informed in written form of the invalidity of the notice of termination, and this was confirmed by her on 3 July 2019. In a letter dated 24 July 2019, the employer again gave notice of termination to the employee with effect to 15 September 2019. However, the employer did not again notify the works council of it.
The employee then filed a lawsuit and argued that the agreement concluded between the employer and her regarding the invalidity of the first termination also caused that the approval of the works council had lost its effectiveness.
The question now arises as to whether a necessary factual and temporal connection still exists if a notice of termination is repeated due to the legal invalidity of the previous notice of termination and no renewed approval of the works council is obtained for this.
In its decision of 2 September 2021, 9 ObA 86/21v, the Austrian Supreme Court essentially stated that an invalid termination does not require an annulment at all. The "agreement" on a mutually agreed "withdrawal of the termination" therefore did not have the scope claimed by the employee, as the employer had only communicated that the termination was invalid, which was also confirmed by the employee.
An interruption of the factual or temporal connection between the notification of the works council and the notice of termination issued again after the expiry of the statutory protection period cannot be derived from this.
There must be a factual and temporal connection between the required notification of the works council by the employer on the one hand and the notice of termination on the other. Such a connection is to be assumed in particular, if it is a single case of termination and if the notice of termination is given at the earliest permissible date or within a period of a few weeks. At the same time, it is in line with case law that a termination is repeated due to the legal invalidity of the first termination is to be regarded as a typical case for such a connection. Furthermore, it is assumed that an invalid termination does not consume the notification.
As a result, this means that there must be a factual and temporal connection between the required notification of the works council by the employer on the one hand and the notice of termination on the other. It follows that - after the works council has been informed and its statement is received - the notice of termination must be given as soon as possible or within a period of a few weeks. If a termination is legally invalid, it does not legally exist and therefore cannot be withdrawn by mutual agreement. Therefore, a direct factual connection between the original notification of the works council and the repeated termination continues to persist. Thus, the repeated termination is legally valid, although the works council was not notified again.
Christina Feistritzer ist Rechtsanwaltsanwärterin bei Jank Weiler Operenyi RA | Deloitte Legal, der österreichischen Rechtsanwaltskanzlei im globalen Deloitte Legal Netzwerk. Ihre Tätigkeitsschwerpunkte liegen vor allem im Arbeits- und Sozialrecht sowie Fremdenrecht.
Stefan Zischka ist Partner und leitet den Fachbereich Arbeitsrecht bei Jank Weiler Operenyi Rechtsanwälte (JWO), dem österreichischen Mitglied des globalen Anwaltsnetzwerkes Deloitte Legal. Seine Tätigkeitsschwerpunkte umfassen die Bereiche Arbeits- und Sozialrecht sowie Zivilprozessrecht (Litigation). Im Jahr 2017 schloss er sich JWO als Partner an. Vor JWO war Stefan Zischka als Rechtsanwalt in einer der größten Rechtsanwaltkanzleien Österreichs (CMS Reich-Rohrwig Hainz Rechtsanwälte) und als Legal Counsel in der Erste Bank tätig.