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A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

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General Protection Against Dismissal

What is general protection against dismissal?

In Austria, the proper termination of an employment relationship by means of notice is generally not subject to any special restrictions. However, certain rules—collectively referred to as “general protection against dismissal”—allow an employee who has been terminated to challenge the termination under specific conditions. The terminated employee may, by filing a challenge action—either personally or through the works council—obtain a court ruling that retroactively declares the termination invalid. If a works council exists, the employer must inform it of the intended termination at least one calendar week before the termination takes effect (preliminary proceedings in connection with employee terminations). The works council may submit its opinion within that week. If the works council approves the termination, a challenge on the grounds of social unfairness is precluded (the so-called veto right of the works council); if it objects, the right to challenge primarily rests with the works council itself. If the works council does not issue a statement, the right to challenge the termination rests with the terminated employee.

When can a termination be contested?

In principle, a termination can be challenged on two different grounds: due to the existence of prohibited motives and due to social unacceptability. The prohibited motives (termination based on motive) are exhaustively listed in the law (e.g., union activity). Since such motives are generally difficult to prove, it is sufficient for the employee to merely establish a “plausible case” for such a ground for termination (as opposed to the general standard of proof). To challenge a termination on the grounds of social unfairness, the employee must have been with the company for at least six months at the time the termination was issued. Social unfairness exists if the termination adversely affects the employee’s vital interests (e.g., impending unemployment due to advanced age, long service with the company, support obligations) and the employer, having taken these interests into account, could have terminated another employee whom this termination would affect less severely from a social perspective. If the employee can prove this, the employer has the option to justify the termination on grounds related to the employee’s personal circumstances and/or for operational reasons (e.g., downsizing). The court then weighs the interests of the employee against the employer’s grounds for termination. Older employees with many years of service are afforded increased protection in this regard.

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