Austria: Summer in Sight: A practical guide to vacation leave under Austrian employment law (Part III)

Continued Remuneration in the Event of an Inability to Work Through No Fault of the Employee

Volcanic eruptions, pandemics and wars – the question of continued remuneration where work is not performed arises anew each time a relevant event occurs (most recently in connection with flight cancellations caused by the conflict in the Middle East) and is, at times, the subject of heated debate.

As a general rule, the employer's obligation to pay remuneration corresponds to the em-ployee's primary obligation to perform work. Where the primary obligation is not per-formed – even without fault – no remuneration would, in principle, be owed under gen-eral civil law rules. Various special provisions of employment law, however, shift this risk allocation to the detriment of the employer, who must, in certain cases, continue to pay remuneration even where no work is performed in return.

The risk of a failure to perform is transferred to the employer by, inter alia, art 8 para 3 of the Austrian Employees Act (Angestelltengesetz) – in the case of white-collar employ-ees – or art 1154b para 5 of the Austrian Civil Code (Allgemeines Bürgerliches Ge-setzbuch) – in the case of blue-collar employees. The prerequisite is that, through no fault of the employee, a material ground relating to the employee prevents them from performing their work for a relatively short period of time.

According to case law, natural disasters that prevent an employee from performing their work may also qualify as material grounds for inability to work within the meaning of art 8 para 3 of the Austrian Employees Act or art 1154b para 5 of the Austrian Civil Code (OGH 16 December 1987, 9 ObA 202/87). These principles may generally also be applied to a short-term inability to return from annual leave in the event of flight cancellations caused by armed conflict or exit bans imposed by government authorities.

If, however, the delay was foreseeable – for instance, because a specific travel warning had been issued and the journey was nevertheless undertaken – the inability to work will generally be regarded as attributable to the employee's own fault. In such cases, the employee is not entitled to continued remuneration.

Inability to Return from Annual Leave

An entitlement to continued remuneration pursuant to art 8 para 3 of the Austrian Em-ployees Act or art 1154b para 5 of the Austrian Civil Code generally exists from the first day that is no longer covered by the agreed leave and is maintained for a relatively short period, unless the applicable collective bargaining agreement or the individual employ-ment contract provides for more favourable terms. As a general rule, a "relatively short period" means a period of approximately one week per incident. However, since there is no statutory time limit, the actual duration must be assessed on a case-by-case basis.

In practice, it may be advisable to agree on an extension of leave with the employees concerned. In this regard, it should be noted that, for periods during which the employee is entitled to continued remuneration notwithstanding the non-performance of work, no legally valid leave agreement may, in principle, be concluded (art 4 para 2 of the Austri-an Leave Act (Urlaubsgesetz)). Moreover, any extension of leave – or, similarly, the use of time off in lieu – always requires the agreement of both sides and cannot be imposed unilaterally.

However, a mutually agreed extension of the holiday arrangement will be an appropriate solution, particularly if there is still a genuine opportunity for rest and relaxation at the place of stay and the employees concerned prefer to make use of this rather than con-tinually seeking alternative means of returning home. This is especially relevant given that the entitlement to continued remuneration is at risk if the employee does not make a genuine effort to organise a reasonable alternative and the fastest possible return.

Employee Obligations

In any event, employees are subject to certain duties of cooperation. They are required to notify their employer of the circumstances without undue delay. In addition, they must take all reasonable steps to return to their place of work as promptly as possible. This encompasses rebooking alternative flights, pursuing alternative routes or accepting de-tours, provided such measures are realistic and can reasonably be expected. This as-sessment must always be made on a case-by-case basis, having regard to the distance involved, the available transport connections and the prevailing risk situation.

Consequences under Employment Law

Where the employee is not at fault for the absence and has duly fulfilled the obligations outlined above, the imposition of employment law sanctions is, as a general rule, not warranted. If, on the other hand, the employee culpably fails to inform the employer in a timely manner, does not make genuine efforts to arrange a return, or unilaterally ex-tends the period spent abroad, this may give rise to employment law consequences. De-pending on the specific circumstances of the individual case, measures ranging from loss of remuneration, a formal warning, termination of employment, or – in particularly egre-gious cases – immediate dismissal may be contemplated.

Authors: Helene Schnabl, Sylwia Gorzkowska