Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Use of Time Credits during Leave of Absence

Precedential Decision by Judiciary or Regulatory Agency

Author: Michaela Gerlach, Partner – Gerlach Löscher | Littler

According to Supreme Court case law, the use of vacation time cannot be ordered unilaterally by the employer, but always requires an agreement, even in the case of a paid leave of absence ordered by the employer (e.g., during the notice period). However, the duty of loyalty may give rise to an exceptional obligation on the part of the employee to use up their vacation within the notice period if this can reasonably be expected from the employee. The Vienna Higher Regional Court recently affirmed such an obligation with regard to time credits, since the leave of absence extended beyond three months, the employee had built up very high time credits (around 385 hours in addition to vacation) and the leave of absence fell within the usual vacation period during the summer. It ruled that the use of at least half of the time credits could reasonably be requested from the employee.

Joint Culpability in Case of Unjustified Dismissal

Precedential Decision by Judiciary or Regulatory Agency

Author: Markus Löscher, Partner – Gerlach Löscher | Littler

In principle, the joint culpability rule applies in the case of justified early termination of an employment relationship, so that any claim for compensation can be determined by a court based on the proportion of culpability from both sides. According to a recent decision of the Vienna Higher Regional Court, however, the rule also applies in the case of unjustified early termination by the employer. Therefore, if the employee is partly to blame for the premature dismissal by the employer, the dismissal remains unjustified, but the court may mitigate the employee’s claim for compensation on the basis of the employee’s contributory negligence.

New Draft Law Regarding Annual Leave Payment

Proposed Bill or Initiative

Author: Christopher Badalec, Attorney-at-Law – Gerlach Löscher | Littler

We previously reported that the European Court of Justice (ECJ) ruled that employees are entitled to monetary compensation for unused annual leave even after unjustifiably terminating their employment early. The Austrian Vacation Act denies such an entitlement. However, following the ECJ’s ruling, the Austrian Social Affairs Committee of the Parliament introduced a draft law to amend the Vacation Act that would provide compensation for up to four unused vacation weeks in cases of unjustified early termination by the employee, but would not compensate for the fifth and sixth weeks. This aspect of the proposed law follows the Austrian Supreme Court’s view that the ECJ’s ruling applies only as to the minimum leave entitlement of four weeks under EU law. Currently, the draft law is pending review in Parliament, but is expected to be passed as suggested by the Social Affairs Committee.

Proposal to Re-launch the Special Care Time for Children Infected with COVID-19

Proposed Bill or Initiative

Author: Armin Popp, Senior Associate – Gerlach Löscher | Littler

The Austrian Social Affairs Committee proposed a re-launch of the special care time for children who are infected with COVID-19. This shall apply for the period from September 5 (retroactively) to December 31, 2022. Parents would be entitled to up to three weeks of care time if their child is prevented from visiting the childcare facility due to official COVID-19 related movement restrictions. Employers will receive a compensation of the costs from the COVID-19 Crisis Management Fund. A possibility to agree on a voluntary care time with the right to such compensation is not provided for anymore. Whether the Parliament will consent to this proposal still remains to be seen.

Proposed Inflation Relief Package Seeks to Increase Annual Valorization of Family and Social Benefits

Proposed Bill or Initiative

Author: Brigitte Sammer, Attorney-at-Law – Gerlach Löscher | Littler

A broad majority in the Austrian Social Affairs Committee voted in favor of annual valorization of family and social benefits (inflation relief package III). In addition to special care allowance, this will also apply to other social and family benefits in the future (such as family allowance, childcare allowance, study allowance, etc.), but not to unemployment benefits or emergency aid. An additional new feature is that the support benefit for the so-called “Papamonat” (father’s month, which is a paternity leave of one month to care for the child and the mother after the birth) will no longer be counted towards the childcare allowance that the father may receive in the future. We will report on whether the Parliament implements this proposal.