According to Austrian law, the claim for annual leave lapses two years from the end of the vacation year in which it arose. The Supreme Court has recently ruled that the vacation entitlement does not expire if the employer has not actively ensured the use of the vacation days.
As already decided by the European Court of Justice in the ruling of September 22, 2022, C-120/21, the Austrian Supreme Court (OGH) has now also ruled on June 27, 2023, in case 8 ObA 23/23z, that the statutory annual leave entitlement of the employee cannot expire if the employer does not fulfill their obligations to notify and inform the employee about the impending expiration of their vacation days. According to the OGH's legal opinion, the vacation entitlement does not lapse if the employer does not actively ensure the use of the vacation.
In the present case, the plaintiff worked as a gamekeeper and estate manager for the defendant party from 2003 to 2020. Each working year, the plaintiff consumed only one to a maximum of seventeen days of vacation. After the employment relationship between the plaintiff and the defendant party ended, the plaintiff had an outstanding vacation entitlement of 322.75 days. The plaintiff claimed vacation compensation for the outstanding claim. The defendant party did not prompt the employee to use the vacation days nor did they inform him about the impending expiration. Therefore, the plaintiff was awarded annual leave compensation.
In practice, this means:
Employers must timely inform their employees about the impending expiration of vacation days and actively request them to use their outstanding vacation days. Accordingly, the employer is responsible for ensuring that the employee is actually able to use their paid annual leave. The employer must notify the employee about the impending expiration and request them to use their vacation days. If an employer fails to do so, they violate their obligation to notify and inform the employee. According to the jurisdiction of the European Court of Justice (EuGH) and now also the Austrian Supreme Court (OGH), this breach of obligation prevents the expiration of the unused vacation entitlement.
The employment law team at KWR is happy to assist you with any questions you may have regarding the topic of annual leave.