No individual contractual protection against dismissal during short-time work

According to the social partner agreement on Corona short-time work, “the employer may not give notice of termination before the retention period expires”. Until now, it has been disputed whether dismissals for operational reasons made in contravention of this provision are invalid.

In Episode 15, we reported on the decision of the Supreme Court (OGH) 8ObA48/21y, according to which the provisions of Section 37b Labour Market Service Act (AMSG) in conjunction with the social partner agreement do not invalidate a notice of termination given during short-time work or the subsequent retention period. However, the short-time work allowance is to be taken into account in the context of a challenge to termination (Section 105 Labour Constitution Act (ArbVG)) when assessing whether operational requirements justify a termination. Since the plaintiff in the case at hand was not covered by the short-time work introduced by individual agreement, the Supreme Court therefore did not decide whether the short-time work agreement establishes an individual contractual protection against dismissal during short-time work.

In its decision (8ObA50/21t), the Austrian Supreme Court (OGH) has now also clarified this question and denied individual contractual protection against dismissal in the case of short-time work. The short-time work agreement states that the employer may not give notice of termination before the retention period expires but does not specify any legal consequences for breaching this requirement. Therefore, the short-time work agreement does not invalidate a notice of termination given during short-time work either.

In conclusion, the signing of the short-time work agreement by the employee does not constitute individual contractual protection against dismissal. Thus, the controversial question of the legal validity of terminations during short-time work and retention period has been conclusively clarified by the Supreme Court.