AUSTRIA Law and Practice Contributed by: Johannes Edthaler and Christina Hödlmayr, Edthaler Leitner-Bommer Schmieder & Partner Rechtsanwälte GmbH
• fails to perform the service for a considerable period of time without a legitimate reason for not doing so. Each dismissal hinges on the employee’s gross misconduct, rendering their continued 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. The employment rela - tionship ends on the day on which the dismissal was issued or served. In the following cases of practical relevance, a spe - cific preliminary procedure must be followed before the notice of termination is issued. • Before dismissing certain persons (eg, those per - forming military or alternative service, expectant mothers and other protected employees or works council members or members of certain other functions), the consent of the competent Labour and Social Court must be obtained immediately after the reason for dismissal has become known. • In companies with an elected works council, the owner of the company must immediately inform the works council of any dismissal. • Any decision to dismiss an apprentice must be made in writing. 7.4 Termination Agreements In the case of a mutually agreed termination, the employer and the employee agree to terminate the employment relationship at a certain point in time. Neither specific deadlines nor dates need to be observed. Consent is voluntary for both sides. In principle, there are no formal requirements for a dis - solution by mutual consent. The dissolution by mutual consent can be made verbally or in writing. For rea - sons of proof, the mutual dissolution should be in writ - ing – signed by both the employee and the employer. There are protective regulations for certain groups of employees; for example, expectant mothers, those
performing military or alternative service, and appren - tices. 7.5 Protected Categories of Employee Employees who are subject to special protection against termination/dismissal can only be dismissed/ terminated under more difficult conditions. The pro - visions for protection against termination/dismissal differ greatly for the individual protected groups of employees. The following employees, among others, are under special protection: • expectant mothers and mothers and fathers taking parental leave or part-time employment on the occasion of childbirth (parental part-time work); • works councillors (substitute members of the works council, members of election committees and candidates under certain conditions); • persons in positions of trust for persons with dis - abilities and their deputies; • employees called up for military or alternative service; and • disabled employees. A dismissal is wrongful if there is no reason for the dis - missal or the dismissal was given too late. In case of wrongful dismissal, the employee can file a complaint with the competent Labour and Social Court. This can result in the employee either receiving “termination compensation” for the period up until the employment relationship would have lawfully ended or even rein - statement to their position. If an employee is terminated (termination in compli - ance with the notice periods and deadlines) by the employer, the employee may, under certain conditions, challenge the termination by bringing an action before the Labour and Social Court. The termination may be challenged if, among other things, it was motivated by inappropriate reasons or because it was socially unjustified if the employee had been employed for at least six months and the works council did not 8. Disputes 8.1 Wrongful Dismissal
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