AMS early warning system – mutually agreed terminations effective during a 30-day blocking period

If an employer intends to dismiss several employees exceeding the statutory threshold in a period of 30 days, they must trigger the early warning system at the competent branch of the public employment service (AMS) (Section 45a para. 1 of the Labour Relations Act (AMFG)). When calculating the threshold value, which depends on the size of the company, not just dismissals, but mutually agreed terminations are also relevant.

Notifying the AMS triggers a 30-day blocking period during which notices of termination cannot be issued with legal effect. Until now, it was unclear and disputed whether this severe sanction also applies to the conclusion of mutually agreed terminations during the blocking period.

This question was clarified by the Supreme Court in a recent decision (9 Ob A 47/21h). 

Although the employer in question had duly filed a complaint, she already offered the conclusion of amicable dissolutions during the blocking period. Based on sec 45a para. 5 AMFG, the plaintiff employee considered her mutually agreed termination, which was concluded during the blocking period, to be legally invalid and demanded remuneration until the agreed end of her fixed-term employment relationship. The Supreme Court rejected this claim, as according to their clear wording, only dismissals during the blocking period are covered by the sanction, stating that only these are legally invalid. On the other hand, terminations by mutual consent conducted during the blocking period are permissible and legally effective. If during staff reduction, an employer only relies on mutually agreed terminations, they must still trigger the early warning system. The argumentation that mutually agreed terminations are not covered by the sanction and so notification is unnecessary is not compatible with the purpose of the provisions on the early warning system.

Unlike before, consensual dissolutions can now not only be offered but also concluded with legal certainty already during the blocking period. However, with regard to the threshold value relevant for triggering the early warning systemmutually agreed terminations must still be taken into account.