Transcript Slide 1
Individual dismissals under
Austrian law
by Univ.-Prof.Dr. Franz Marhold
Individual dismissals – Austria
Franz Marhold
Limited dismissal protection – a
cornerstone of Austrian-style
„flexicurity“
Individual dismissals – Austria
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Much appreciated by the
European Commission…
2007 Communication on Common Principles of
Flexicurity
Prime example: Austria
Low de facto level of employment protection
High labour market flexibility
Elimination of barriers to job mobility by the severance pay
reform
Strong reliance on social partnership
“Relatively little need for employers to take recourse to
fixed term contracts”
High employment rate, high participation in lifelong
learning, lowest unemployment rate in EU (now 4.2%)
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General rule: liberty of
termination
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Basics
No need to motivate the dismissal
No specific formal requirements
No generally applicable period of notice
Specific laws
White-collar employees: 1.5–5 months
Collective agreements
No reinstatement in case of non-observance
Severance pay:
New system (since 2003): no direct payment by the
employer
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General dismissal protection
(Allgemeiner Kündigungsschutz)
A collective approach
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General dismissal protection
In establishments of ≥ 5 employees
Exempt: managerial staff
Central actor: works council
Informed in advance about every dismissal
1 week for deliberation
Otherwise: dismissal is void
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Opinion of the works council
Explicit objection
No reaction
(implicit objection)
Consent
dismissal can be challenged (within 1-2 weeks)…
by the works
council, subsidiarily
by the employee
by the employee
But no social
comparison
by the employee
But only for specific
reasons
Where no works council exists: challenge by the employee
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2 possible grounds for
challenging the dismissal:
1) “Proscribed reasons” (exhaustively
enumerated)
Discrimination on grounds of works council / trade
union membership etc.
Victimisation
…
Alleviation of the burden of proof
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2 possible grounds for
challenging the dismissal:
2) “Social unacceptability”
Individual hardship
E.g. older employee with poor prospects on the labour
market
Weighed against the employer’s interest in termination
Justification by personal or business reasons
Duty to consider all alternatives before dismissal as a last
resort
Precondition: ≥ 6 months of seniority
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Main consequences of the
works council’s opinion
Consent of the works council
No challenge on grounds of social
unacceptability
“Blocking right” of the works council
Friction with Art. 30 EU Charter of Fundamental
Rights?
Explicit objection by the works council
“Social comparison”
Whom to dismiss among several “eligible” employees?
Employer must choose the individual who would suffer
less social hardship
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Individual challenge (without
works council involvement)
Introduced for implementing EU directives:
Dismissals on grounds of
Gender, age, race etc.
Leaving the workplace in case of danger
Successfully challenged dismissal is invalidated
reinstatement of the employee
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Termination without Notice
(Entlassung)
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Immediate dismissal
If further employment cannot be expected from the
employer
“Important reason”: different catalogues for
categories of employees
White-collar employees:
Disloyalty or untrustworthiness
Incapability to work
Breach of the prohibition of competition
Non-observance of orders
Persistent refusal to work
Assault or insult of the employer or fellow workers
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After termination without
notice:
Immediate information of the works council
3 days for deliberation
Again: works council’s reaction determines possibilities
of challenging the dismissal
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Extra protection for certain
employees
(Besonderer Kündigungsschutz)
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Special dismissal protection
Categories:
Works council members
Pregnant employees
Employees on parental leave
Employees doing military service
Disabled employees
Mechanisms of additional protection
Prior approval of a court / special authority
Justification requirement
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Thanks for your attention!
Institute for Austrian and European
Labour and Social Law
WU Vienna
Augasse 2-6, 1090 Vienna, Austria
UNIV.PROF. DR. FRANZ MARHOLD
T +43-1-313 36-DW
F +43-1-313 36-DW
[email protected]
www.wu.ac.at
Individual dismissals – Austria
Franz Marhold