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:
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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