Supreme Court clarifications on the early warning system pursuant to Section 45a of the Labour Market Promotion Act (AMFG)

Published 17/12/2020

The AMS early warning system obliges an employer to notify the AMS in writing if it intends to terminate the employment relationships of a significant proportion of its staff. In addition, the employer must wait at least 30 days before giving notice of termination. The Supreme Court recently made two important and extremely practice-relevant clarifications:

(1) The criterion in Section 45a(1)(4) of the AMFG “having reached the age of 50” is to be based on the point in time when the employer decides to terminate the employment relationship (rather than the point in time when the employment relationship ends as a result of the termination; OGH 9ObA74/20b).

(2) If only the threshold of Section 45a(1)(4) of the AMFG (at least five employees over 50) is exceeded, employment terminations of employees who have not yet reached the age of 50 will be legally effective. Only if the intended termination of employees (older or younger than 50) also exceeds the threshold value according to nos. 1 to 3 in total, does the prohibition of dissolution apply (OGH 8ObA83/20v).

Please pay attention to the AMS early warning system and plan your staff reductions carefully.