The Austrian Supreme Court (OGH) has ruled that in case of temporary workers, it is sufficient for the enterprise where a temporary worker is deployed to be notified of sick leave and by doing so, the temporary worker continues to be entitled to payment of remuneration from the temporary work agency.
In its recent ruling 9 ObA 100/22d, the Supreme Court (OGH) dealt with the question who a temporary worker must notify of his or her absence from work due to illness. Previous case law has so far left this open.
The worker who sued had been deployed at an enterprise using the services of the defendant, a temporary work agency, during the entire period of the employment with the defendant. On 03 September 2021 the contracting parties agreed in writing that the employment contract would be terminated by mutual consent as of 01 September 2021. On 01 September 2021, the plaintiff had been unfit for work and had been sent home from his workplace before his shift was over. The next day, the temporary worker's family doctor sent him on sick leave with retroactive effect for the period starting on 01 September 2021 and ending on 07 September 2021. The plaintiff informed his supervisor in the workplace about his sick leave.
In his statement of claim, the temporary worker called for continued payment of wages for the entire period of his sick leave; the defendant pleaded that the employee had not notified the agency of the sick leave in a timely manner and that he was therefore not entitled to continued payment of wages. The lower courts rejected the claim.
The Supreme Court ruled that a sufficiently specific notification of sick leave to the workplace where a temporary worker is deployed is sufficient if the worker has no reason to believe that such information would not be shared with the temporary work agency without delay. Since both the enterprise where a temporary worker is deployed and the temporary work agency fulfil the function of an employer in the context of equal treatment provisions and prohibitions of discrimination, a worker may safely assume that the required information about his deployability will be exchanged between the enterprise where he is deployed and the temporary work agency. As a result, a sufficiently specific notification of sick leave to the workplace is sufficient to safeguard the employee's entitlement to remuneration from the agency.
Your KWR Employment Law team will be happy to assist you with all questions relating to temporary workers.