AUSTRIA Law and Practice Contributed by: Johannes Edthaler and Christina Hödlmayr, Edthaler Leitner-Bommer Schmieder & Partner Rechtsanwälte GmbH
the notice of termination. If they fail to do so, their right to a written justification expires. The employer has five days from receipt of the request to submit the required written justification. The day of receipt of the request for reasons is not counted towards the start of the deadline. Under certain conditions, the employee may contest the termination before the competent Labour and Social Court, for example on grounds of social hard - ship or an unlawful motive for termination. In this case, the employer must substantiate and prove the factual justification of the termination (eg, under-performance) in the court proceedings. Dismissal of an Employee for Just Cause Dismissal is the immediate (“without notice”) termina - tion of the employment relationship by the employer for certain important reasons. The grounds for dismissal for white-collar workers are listed by way of example in the Employees Act ( Angestelltengesetz ), and for blue-collar workers in full in the Industrial Code 1859 ( Gewerbeordnung ). There are special grounds for dismissal for employ - ees protected by law. Each dismissal hinges on the employee’s gross misconduct, rendering their contin - ued employment untenable for the employer. As soon as the employer is aware of the reason for dismissal, they must issue the dismissal without delay – ie, usually on the same day. Mass Redundancies If a company intends to terminate a significant num - ber of its (older) employees within one month, it must inform the Austrian Public Employment Service (AMS) in writing at least 30 days before the first termination of an employment relationship (the so-called “early warning system”). If the requirements of this early warning system are not met, the terminations issued are invalid. If the employer intends to terminate a relevant num - ber of employment relationships within the meaning of the early warning system, this constitutes a so-called “change in operations”. At the request of the works
council, the employer must consult with the works council on the form of the measure. 7.2 Notice Periods The employer must observe certain notice periods and dates when terminating the employment relationship. Issuance of the Notice of Termination The employer’s notice of termination is not subject to any special content or form requirements. Some “laws” and collective agreements expressly provide for a written notice, in which case the notice of termi - nation only becomes effective upon delivery. In the following cases of practical relevance, a spe - cific preliminary procedure must be followed before the notice of termination is issued: • terminations in companies with an elected works council (informing the works council and waiting for a certain period of time before giving notice of termination); • terminations that are subject to the early warning system with the obligation to notify the Austrian Public Employment Service (ie, mass redundan - cies); • terminations of particularly protected persons, eg, expectant mothers, employees on parental leave, works council members (prior consent of the Labour and Social Court is required); and • terminations of disabled persons (prior consent of the competent disability committee is required). Employer’s notices of termination issued without observing the preliminary procedure or without the necessary consent are legally invalid. Notice Periods The notice period begins on the day following the day on which the notice of termination is given. The notice period is the time between the notice being given and the end of the employment relationship. The notice periods for white-collar workers are based on the provisions of the Employees Act ( Anges- telltengesetz ) unless the collective agreement pro - vides otherwise. The notice periods for blue-collar workers are generally based on the General Civil Code
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