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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 Franz Marhold 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%) Individual dismissals – Austria Franz Marhold General rule: liberty of termination Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold General dismissal protection (Allgemeiner Kündigungsschutz) A collective approach Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold Termination without Notice (Entlassung) Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold Extra protection for certain employees (Besonderer Kündigungsschutz) Individual dismissals – Austria Franz Marhold 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 Individual dismissals – Austria Franz Marhold 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