In Austria, there have been several cases in which the Supreme Court had to rule on whether certain forms of termination satisfy the so-called written form requirement. In the case of an employer terminating the employment contract of an employee whose employment was governed by the Contractual Employees Act 1948 (VBG), the Supreme Court had to decide whether the transmission of the signed copy of a termination letter by post or as a PDF attachment to an e-mail complied with the requirement of written form.
Written form requirement for terminations of employment
In principle, an employment contract under Austrian law does not necessarily have to be terminated in writing. However, written form is often agreed upon in the employment contract and/or provided for in the applicable collective agreement; moreover, there are statutory written form requirements in exceptional cases. Apart from this, for reasons of evidence, it is generally not advisable to give verbal notice of termination (only), written notice of termination is to be preferred.
Supreme Court ruling
In its ruling of 30 August 2022, 8 ObA 101/21t, the Supreme Court recently dealt with the requirement of written form in the Contractual Employees Act (VBG). According to Sec. 32 VBG, an employment contract can only be terminated in writing, stating reasons, if the employer-employee relationship has lasted for year continuously. In the case on hand, a teacher was sent a scanned copy of the notice as a PDF attachment to an e-mail instead of receiving the original notice of termination.
The employee sought a declaratory judgment to the effect that the employment contract was still valid, stating that the termination was invalid due to non-compliance with the legal requirement of written form. The court of first instance found in favour of the plaintiff, but the court of appeal and the Supreme Court did not:
According to the Supreme Court, the essential purpose of the written form requirement in case of notice of termination given by an employer is that the former employee has a document for the purpose of evidence and may show this document to a legal advice centre for review. With regard to the purpose of verifiability, it must also be considered that such a document can be easily printed out. When reviewing the validity of notice of termination given via WhatsApp, the Supreme Court found that this was not a valid form because technical know-how was required for printing (Supreme Court, 9 ObA 110/15i).
In its ruling of 24 April 2020, the Supreme Court (8 ObA 5/20y) affirmed that a scanned letter satisfied the written form requirement in the context of fixed-term employment the term of which was declared not to be extended.
In accordance with its previous case law, the Supreme Court also considered the purposes of information and evidence to be fulfilled when a scanned copy of the termination notice was sent by e-mail.
Significance in practice
However, in practice this does not mean that of issues of form should not be given highest priority when terminating employment - if a termination is formally "incorrect", the employee may challenge it. No mistakes must be made when it comes to formal requirements as well as to issues such as the delivery of the notice, the correct calculation of the period of notice, advance information to the works council of intended notice, the early warning system and other issues.
Although the Supreme Court ruling described is welcome, the transmission of a notice of termination by registered mail or by personal delivery, including acknowledgement of receipt, is to be preferred to transmission as an e-mail attachment. The main reason for this is that technical problems may occur in e-mail transmissions, and in individual cases this can lead to complicated questions of whether delivery has taken place or not.
Your KWR Employment Law Team will be happy to assist you with questions relating to the termination of employment.