An outline of the problem outline
When employees are on sick leave for a long time and/or frequently, without any prospect of improvement, employers are often faced with the question of whether and when notice of termination of employment may be given. In two recent rulings (8 ObA 87/22k and 9 ObA 26/22x), the Austrian Supreme Court dealt with the question of whether termination of employment due to long and/or frequent sick leave can be challenged as unacceptable on social grounds and is thus at risk of being invalid.
Frequent and/or prolonged sick leaves of an employee can in principle be used as a person-related reason for termination of employment. There are no legal provisions for the assessment of the extent of sick leave which would justify a termination of employment on such personal grounds; rather, assessments have to be done on a case-by-case basis.
In the opinion of the Supreme Court, an employee’s sick leave must, when viewed objectively, constitute circumstances related to the employee as a person which adversely affect the interests of the company and therefore justify termination of employment. Such assessment must also take into account how the number of sick days will develop in the future.
Brief insight into Supreme Court ruling 8 ObA 87/22k
In the case underlying the Supreme Court ruling of 23 February 2023 (8 ObA 87/22k), the plaintiff had been on sick leave for several months continuously, sick leave was open-ended and expected to last for a long time.
In this individual case, the Supreme Court ruled that termination of employment was not invalid on social grounds since long periods of sick leave can constitute a person-related reason for termination due to non-employability of the worker and the loss of performance which even a substitute can no longer make up.
Brief insight into Supreme Court ruling 9 ObA 26/22x
In its ruling of 27 April 2022 (9 ObA 26/22x), the Supreme Court also came to the conclusion that the termination of employment was not unacceptable on social grounds. In this case, an employee had massive numbers of sick days, which made shift work unplannable and led to the transfer of the plaintiff to a "sheltered work place", much to the displeasure of the other employees. The company doctor found that it was too much of a health risk to continue deploying her in her previous workplace, so it was no longer an option from a medical point of view. The employee later told the employer that she was feeling better and wanted to return to her original job. If the employer had followed the employee's request, contrary to the views of the employee's family doctor and the company doctor, and if it had reinstated her in the original workplace, it could have exposed itself to reproaches that it massively breached its employee protection and care duties if her state of health deteriorated again. The employee did not submit any medical certificates or other documents qualifying or refuting the family doctor's medical assessment so as to prove that her state of health was better. During the proceedings, the plaintiff did not discharge the treating specialist from his duty of confidentiality, which meant that he was not allowed to make any statements about her state of health. The Supreme Court considered the termination of employment to be justified in this individual case as well.
Significance of the rulings in practice
Despite the two most recent rulings of the Supreme Court on this exciting topic, the assessment of whether termination of employment due to sick leave is legally permissible remains a matter of case-by-case decisions. There is already extensive case law on the topic of termination of employment due to frequent and/or long periods of sick leave, which must be reviewed in each specific case. Questions regarding the number and frequency of sick leaves, the prognosis for the future, possibly special provisions of the Disability Employment Act (Behinderteneinstellungsgesetz), legislation on the continued payment of remuneration and the general principles governing the employer's duty of care/the employees’ duty of loyalty all come to bear here.
Your KWR Employment Law Team will be happy to assist you.