In a nutshell
In its ruling 9 ObA 57/21d, the Austrian Supreme Court had to deal with the question of protection from termination of employment due to trade union activities. The court came to the conclusion that trade union activities of employees which are not externally recognizable as such do not entitle an employee to challenge the termination of employment on the basis of a proscribed reason, i.e. trade union activity.
The case on hand
Two employees, truck drivers, were dissatisfied with changes in their company (including measures to make the fleet more efficient). As a result, they voiced criticism to the management. In the past they had repeatedly violated company policies and legal regulations (including regular alcohol consumption). The management intended to give notice of termination to both employees.
Around the same time, the two employees contacted the trade union, became members, cooperated with officials, intended to form a works council and convened a works meeting. However, they did not inform the employer about these steps.
Subsequently, their employment contracts were terminated. They brought actions to contest their termination on the grounds that they had been given notice for a proscribed reason (trade union activity, Sec. 105 par. 3 sub-par. 1 (b) of the Austrian Labour Constitution Act/ArbVG). Only recently, termination for proscribed reasons was the subject matter dealt with in a blog post (dated 04 October 2021).
The ruling
In its ruling, the Supreme Court engaged with the notion and scope of trade union activities. Activities are considered to be "trade union-related" if they represent actions in pursuit of specific trade union objectives and are externally recognizable as proactive trade union work. However, this was not the case here - the plaintiffs' only established action clearly directed to the outside was their vehement criticism of the management's planned measures. In the opinion of the court of first instance and the Supreme Court, this was not sufficient to render the terminations of employment invalid. The terminations were therefore effective.
Interim summary
This ruling provides a welcome way of fleshing out Sec 105 par. 3 sub-par. 1 lit b ArbVG. Furthermore, it is an important step toward ensuring that employers cannot be accused that they should have considered something they did not even know. However, this does not change the fact that every termination of employment should be a careful case-by-case decision.
The KWR Employment Law Team will be glad to answer any questions you might have about terminations of employment.