Supreme Court (OGH): No special protection against dismissal in cases where the intention to take part-time parental leave is announced but unspecified

Published on 7^th October 2022

When taking advantage of part-time parental leave, a worker’s special protection against termination and dismissal begins when the wish to assert this right is made in writing, but no earlier than four months before the intended start date. A worker can then only have their employment terminated or be dismissed under certain circumstances up to four weeks after such part-time parental leave has come to an end, but no more than up to four weeks after the child’s fourth birthday, with the prior consent of a judge.

A recent ruling by the Supreme Court (OGH 31.08.2022, 9 ObA 92/22b) has clarified that simply expressing a vague wish to take advantage of part-time parental leave is insufficient to trigger the special protection against termination and dismissal. According to the facts of the case, the claimant first merely stated to his supervisor that he wanted to take part-time parental leave. The latter informed the claimant that he did not think it would be possible for his hours to be reduced because of a project and referred the claimant to the HR department. The claimant subsequently sent a meeting appointment in Outlook to his direct supervisor and the deputy head of the HR department, the subject of which being his intention to take part-time parental leave. The employer terminated the employment just a few days later, although it could not be determined whether the claimant announced his wish to take part-time parental leave, along with the duration, extent and location thereof, in writing or verbally. 

This meant that, in this specific case, the announcement of wanting to pursue part-time employment did not satisfy the criteria of section 8b(4) of the Paternity Leave Act [Väter-Karenzgesetz, VKG] and, consequently, the claimant was not yet covered by the protection against dismissal under the VKG. It is clearly stated in section 8b(4) sentence 1 of the VKG that employees are required to stipulate in writing the start date, duration, extent and the location of the part-time employment. In rulings on the same stipulation in the Maternity Leave Act [Mutterschutzgesetz, MSchG], stating a wish for part-time parental leave verbally does result in protection against dismissal if the employer enters into talks to address this wish, if an agreement on the part-time work is ultimately reached, and if there can be no doubt as to declarative intent, from an objective standpoint, of agreeing on a part-time employment arrangement under the provisions of the MSchG (RS0123841). This is not the case here, because neither did the employer enter into talks nor was an agreement reached. 

It should, however, be noted that, even if the special protection against termination and dismissal has not yet started, employees can challenge the dismissal under section 105(1) (i) of the Works Constitution Act [Arbeitsverfassungsgesetz, ArbVG] for asserting apparently not unjustified claims contested by the employer as well as asserting a legal challenge under the Equal Treatment Act [Gleichbehandlungsgesetz, GlBG] (section 3 no. 7 GlBG, section 12(7) GlBG).