Why Contesting a Termination Can Be Beneficial in Austria

Facing termination is a significant challenge for employees in Austria. However, Austrian labor law provides mechanisms to contest unjust terminations. This article offers a comprehensive overview of the grounds for contesting a termination, the associated procedures, and the role of legal protection insurance.

Grounds for Contesting a Termination

Prohibited Motive 

A termination can be contested if it occurs for unlawful reasons, such as union membership, candidacy for the works council, or asserting employee rights. Such motives are legally prohibited and provide a basis for contestation.

Social Injustice 

A termination is considered socially unjust if it significantly impairs the employee’s interests without being justified by operational or personal reasons. Factors like long tenure, advanced age, or support obligations may be taken into account.

Discrimination 

Terminations based on characteristics such as gender, age, ethnic origin, religion, or sexual orientation are impermissible. The Equal Treatment Act protects employees from such discrimination.

Procedure for Contesting a Termination in Austria

The process for contesting a termination in Austria is strictly regulated:

• Works Council: In companies with a works council, it must be informed prior to the termination. Depending on the council’s response (approval, objection, no comment), different contestation options arise.

• Deadlines: Employees must file a contestation with the Labor and Social Court within two weeks of receiving the termination notice. If the works council has objected, it can initiate the contestation within one week; if not, the employees have an additional week to do so themselves.

Burden of Proof and Consequences of a Successful Contestation

• Burden of Proof: In termination contestation proceedings, the burden of proof initially lies with the employee, who must demonstrate that the termination was socially unjust or based on a prohibited motive. If convincingly presented, the employer must then justify the termination with factual reasons.

• Balancing of Interests: In cases of socially unjust terminations, a balance needs to be struck between the interests of the employer and the employee. Factors such as tenure, age, and employees’ social obligations play a role.

• Consequences: A successful contestation can lead to the annulment of the termination, allowing the employment relationship to continue. Alternatively, financial compensation or an amicable settlement may be agreed upon.

Special Termination Protection

Certain groups of people enjoy special protection against termination, including:

• Pregnant Employees: From the onset of pregnancy until four months after childbirth, there is protection against termination and dismissal.

• Works Council Members: They can only be terminated under specific conditions and with the approval of the Labor and Social Court.

• Disabled employees: Employees with a recognized disability status may only be terminated after approval by the Disability Commission.

• Military service and Civil Servants: Special protection exists during their service.

Role of Legal Protection Insurance

Legal protection insurance can be highly beneficial for employees, especially when contesting a termination. It often covers the costs of legal advice and representation or a significant part thereof, thereby minimizing financial risk.

• Advantages of Contesting with Legal Protection Insurance:
  
  • No high attorney or court fees
  • Better negotiating position with the employer
  • Higher chances of an amicable settlement or compensation

If a termination appears socially unjust or discriminatory, insured individuals should consider the possibility of seeking  judicial review.

Conclusion

Employees should not hastily accept a termination but examine whether there are grounds for contestation. It is advisable to seek legal counsel promptly, as the deadlines for contestation are very short. We invite you to contact us should you want legal assistance by our experienced attorneys in challenging your termination. 

Note: This article is for general information purposes and does not replace individual legal advice.