Labour law is different – this also applies to labour court procedural law: Labour law recognises the so-called provisional enforceability of first-instance judgements: If an employee contests their dismissal or termination within the framework of general protection against dismissal (Sections 105 et seq. ArbVG) and wins in the first instance, the terminated employment relationship is provisionally deemed to continue, even though the proceedings have not yet been legally concluded. This means that remuneration must continue to be paid even if the employee wins in the first instance, but the employer does not accept the decision and lodges an appeal. If the employer wins the appeal proceedings, the remuneration paid can be reclaimed.
Whether this principle from appeal proceedings also applies to declaratory proceedings was previously unclear. The Supreme Court has now recently clarified this question – in favour of employers – (OGH 9 ObA 77/24z):
An employee had successfully sued in the first instance for a declaration of the continuation of the employment relationship and was subsequently suspended from duty. The employer continued to pay the remuneration, subject to repayment if the case was lost. However, after losing in the court of last instance, the employee refused to repay the remuneration. He referred to opinions in the literature that reject employers' claims for repayment in such constellations.
The Supreme Court, however, saw no reason to depart from its previous case law and clearly rejected the contrary opinions in the literature. The Supreme Court thus confirms the previous case law and also applies it to declaratory proceedings:
- Due to the binding effect of a first-instance judgement, the employment relationship continues to exist fictitiously for the time being. Employees can therefore claim remuneration on the basis of Section 1155 of the Austrian Civil Code (ABGB).
- The binding effect expires when the claim is legally rejected. This means that the legal basis for the payment of remuneration subsequently ceases to apply, regardless of the employee's willingness to work.
- Remuneration paid without legal basis is fully recoverable in accordance with Section 1435 of the Austrian Civil Code (ABGB).
- Even an exceptional right to employment under Section 18 of the Theatre Labour Act would not change this, because this right is not enforceable even in an existing employment relationship.
In practice, this means that after successfully winning a termination proceeding – be it a contestation or declaratory proceeding – employers can reclaim the remuneration paid to employees who were released from their duties during the provisional enforceability of the favourable first-instance judgement.
