Labor Law UPDATES

There are some interesting decisions in the labor law section that we do not want to deprive you of.

1 OGH, 25.2.2021, 8 ObA 2/21h - Termination agreement of an employment relationship after threat of dismissal

"A termination agreement reached under threat of dismissal is legally valid if there were plausible and objectively sufficient grounds for the employer to pronounce it."

Whether an employee can challenge a termination agreement because he was put under pressure by the threat of summary dismissal depends on whether the employer had plausible and objectively sufficient reasons for the threat of dismissal.

2 OGH, 23.2.201, 8 ObA 116/20x - Persistent dishonesty of a sales representative and loss of trust.

"The ground for dismissal based on trustworthiness does not require an intent to harm or the occurrence of harm to the employer. In the case of employees in the field who are free to arrange their working hours, fictitious statements about visits to customers may also constitute grounds for dismissal."

A pharmaceutical sales representative in the field documented doctor's visits that had not taken place in the visit report serving as proof of performance. Unaware of the fact that a detective's report on her actions was already available, she insisted on the untruths vis-à-vis the employer. Particularly in the field, the employer must be able to rely on the employee's truthful statements; there need not be any damage or intent to harm.

3 OGH, 23.2.2021, 8 ObS 9/20m - Written flexitime agreement without works council

"In companies without a works council, flexitime must be regulated by written agreement. This written agreement is constitutive. The minimum content of a flexitime agreement includes, among other things, the specification of the duration of the flexitime period. If this is missing, the flexitime agreement is invalid. Exceeding the normal working time limits must therefore be treated as overtime subject to extra pay.

The employee has the right to choose between overtime pay and compensatory time. If the employee only uses compensatory time in a ratio of 1:1, the supplements shall be paid out separately. A collective agreement expiry period for overtime pay applies to this entitlement. It shall not become due only at the end of the employment relationship."

This clear decision text does not require any further discussion, but should only serve as a reminder for employers who have to make flexitime agreements with employees directly due to the lack of a works council.

4 OGH 25.3.2021, 8 ObA 8/21s - Claim for damages against employee for detective costs

"An employer (AG) is then entitled to compensation for investigation costs within the framework of an adequate typical causal connection if the employee (AN) initially provided sufficient indications of conduct contrary to the contract and contrary to the interests of the AG, which prompted the AG to obtain further clarification (in this case to prove the reason for dismissal) through suitable investigations."

The permanent "playing sick" of an employee led to the commissioning of a detective agency. A claim for reimbursement of such costs depends on the necessity of the detective assignment. The costs are only to be reimbursed if the deployment was objectively necessary; if such surveillance is obviously superfluous and inexpedient, there is no claim. They are also only to be reimbursed to a reasonable extent in relation to the concrete interest in information, so if misconduct has already been confirmed by a detective report, further costs are inadmissible.

5 OGH, 19.1.2021, 10 ObS 132/20i - A notable accident insurance decision

"The trip to an ATM in order to withdraw cash from there to the debit of the salary account is not covered by the statutory UV according to § 90 para 2 Z 7 B-KUVG (§175 para 2 Z 8 ASVG), even if it is the first cash withdrawal after the remuneration transfer."

The employee concerned received money on his salary account and withdrew for the first time after receiving his salary, while crossing the street a vehicle hit him. This was not a bank route in the sense of the accident insurance!