In recent months, important decisions have been published regarding employment contracts with refusers of COVID-19 protection measures which were terminated. In particular, given new measures such as the “3G in the workplace rule” (3 G standing for the German abbreviation of “Geimpft, getestet, genesen”/“Vaccinated, tested or recovered”) the question which thus arises for practitioners is whether a certain trend in case law can already be identified on the basis of these decisions.
- Notice of termination due to test refusal (Austrian Supreme Court ruling 8 ObA 42/21s)
As reported, the Supreme Court held that under the 4th COVID-19 Emergency Measures Regulation then in force, it was permissible to terminate the employment contract of an employee working in a retirement/nursing home who refused to be tested contrary to his duty. The Supreme Court ruled that the refusal to provide 3G evidence made this a case of notice on personal grounds.
In its ruling, the Supreme Court held in particular that the employee's persistent refusal to undergo testing as instructed was manifestly unfounded. Furthermore, it ruled that any of the employee's concerns regarding the unconstitutionality of the regulations in force were not relevant, as even unconstitutional regulations must in principle be applied until they are potentially set aside by the Constitutional Court.
Moreover, the Supreme Court came to the conclusion that the employee's invocation of his "fundamental rights and freedoms" was less worthy of protection than the protection of particularly vulnerable groups, such as nursing home residents.
According to the Supreme Court, it was clear from the 4th COVID-19 Emergency Measures Regulation that the employer itself was the direct addressee of the regulation and was therefore obliged to bar the plaintiff from entering the workplace without a negative test result.
- Notice of termination for non-compliance with the obligation to wear a mask (Higher Regional Court of Innsbruck, 13 Ra 33/21g)
The plaintiff did not wear nose-mouth protection or an FFP2 mask while performing her work and could not provide a medical certificate to warrant an exemption. She challenged the subsequent termination of employment on grounds of having been discriminated against on the basis of her world view and health impairment.
In the opinion of the Higher Regional Court of Innsbruck, there was no discrimination on grounds of "world view" within the meaning of Sec. 17 of the Equal Treatment Act (GlBG) because the plaintiff had based her argument on a "selective" expression of political opinion, which in itself would not constitute a protected characteristic. Moreover, the court also held that even if this had been a case of discrimination, it could be justified on the basis of Sec. 20 GlBG. The court stated that the termination of employment was not only objectively justified, but also reasonable and necessary.
Furthermore, the Higher Regional Court of Innsbruck found that even if one were to assume that the plaintiff had a disability which would make her eligible for notice of termination subject to stricter conditions only, the termination at issue would in any event be based on a different - non-discriminatory - reason, namely the violation of COVID-19 protection measures.
In this decision, the Innsbruck Higher Regional Court even held that the plaintiff had actually provided grounds for termination without notice herself (gross breach of duty).
- Termination without notice due to non-compliance with quarantine order (Supreme Court, 8 ObA 54/21f)
An employee was under order to quarantine for 14 days under Sec. 7 of the Austrian Epidemic Diseases Act (EpiG) and instructed not to leave her home during that period. Despite the order, the employee went to work the following day, where she potentially came into contact with 15-20 colleagues. The next day, the employee received a positive test result. The employer was also informed of this result by the health authorities and had to quarantine the entire department (23 employees) for 14 days.
After it had become known that the employee had gone to the office despite the order to quarantine, the employer dismissed her without delay due to lack of trustworthiness. The Supreme Court held that such termination without notice was justified.
The decisive factor for the Supreme Court was that the employee had ignored the official order although she could not have known whether she was infected or not, and thus had accepted the risk of putting the health of her colleagues and the interests of the employer in jeopardy.
It can be expected that more decisions and rulings on related issues will be handed down on an ongoing basis. The question as to how refusal of compliance with COVID-19 protection measures is dealt with under employment law must always be reviewed on a case-by-case basis.
If you have any questions about COVID-19 and employment law, our KWR Employment Law Team will be happy to help.