1. Individual dismissals – AustriaFranz Marhold Individual dismissals under Austrian law by Univ.-Prof.Dr. Franz Marhold

2. Individual dismissals – AustriaFranz Marhold Limited dismissal protection – a cornerstone of Austrian-style „flexicurity“

3. Individual dismissals – AustriaFranz Marhold Much appreciated by the European Commission…  2007 Communication on Common Principles of Flexicurity  Prime example: Austria  Low de facto level of employment protection  High labour market flexibility  Elimination of barriers to job mobility by the severance pay reform  Strong reliance on social partnership  “Relatively little need for employers to take recourse to fixed term contracts”  High employment rate, high participation in lifelong learning, lowest unemployment rate in EU (now 4.2%)

4. Individual dismissals – AustriaFranz Marhold General rule: liberty of termination

5. Individual dismissals – AustriaFranz Marhold Basics  No need to motivate the dismissal  No specific formal requirements  No generally applicable period of notice  Specific laws  White-collar employees: 1.5–5 months  Collective agreements  No reinstatement in case of non-observance  Severance pay:  New system (since 2003): no direct payment by the employer

6. Individual dismissals – AustriaFranz Marhold General dismissal protection (Allgemeiner Kündigungsschutz) A collective approach

7. Individual dismissals – AustriaFranz Marhold General dismissal protection  In establishments of ≥ 5 employees  Exempt: managerial staff  Central actor: works council  Informed in advance about every dismissal  1 week for deliberation  Otherwise: dismissal is void

8. Individual dismissals – AustriaFranz Marhold Opinion of the works council Explicit objectionNo reaction (implicit objection) Consent by the works council, subsidiarily by the employee by the employee But no social comparison by the employee But only for specific reasons dismissal can be challenged (within 1-2 weeks)… Where no works council exists: challenge by the employee

9. Individual dismissals – AustriaFranz Marhold 2 possible grounds for challenging the dismissal: 1) “Proscribed reasons” (exhaustively enumerated)  Discrimination on grounds of works council / trade union membership etc.  Victimisation  …  Alleviation of the burden of proof

10. Individual dismissals – AustriaFranz Marhold 2 possible grounds for challenging the dismissal: 2) “Social unacceptability”  Individual hardship  E.g. older employee with poor prospects on the labour market  Weighed against the employer’s interest in termination  Justification by personal or business reasons  Duty to consider all alternatives before dismissal as a last resort Precondition: ≥ 6 months of seniority

11. Individual dismissals – AustriaFranz Marhold Main consequences of the works council’s opinion Consent of the works council  No challenge on grounds of social unacceptability  “Blocking right” of the works council  Friction with Art. 30 EU Charter of Fundamental Rights? Explicit objection by the works council  “Social comparison”  Whom to dismiss among several “eligible” employees?  Employer must choose the individual who would suffer less social hardship

12. Individual dismissals – AustriaFranz Marhold Individual challenge (without works council involvement) Introduced for implementing EU directives: Dismissals on grounds of  Gender, age, race etc.  Leaving the workplace in case of danger  Successfully challenged dismissal is invalidated  reinstatement of the employee

13. Individual dismissals – AustriaFranz Marhold Termination without Notice (Entlassung)

14. Individual dismissals – AustriaFranz Marhold Immediate dismissal If further employment cannot be expected from the employer  “Important reason”: different catalogues for categories of employees  White-collar employees:  Disloyalty or untrustworthiness  Incapability to work  Breach of the prohibition of competition  Non-observance of orders  Persistent refusal to work  Assault or insult of the employer or fellow workers

15. Individual dismissals – AustriaFranz Marhold After termination without notice: Immediate information of the works council  3 days for deliberation  Again: works council’s reaction determines possibilities of challenging the dismissal

16. Individual dismissals – AustriaFranz Marhold Extra protection for certain employees (Besonderer Kündigungsschutz)

17. Individual dismissals – AustriaFranz Marhold Special dismissal protection  Categories:  Works council members  Pregnant employees  Employees on parental leave  Employees doing military service  Disabled employees  Mechanisms of additional protection  Prior approval of a court / special authority  Justification requirement

18. Individual dismissals – AustriaFranz Marhold Institute for Austrian and European Labour and Social Law WU Vienna Augasse 2-6, 1090 Vienna, Austria UNIV.PROF. DR. FRANZ MARHOLD T +43-1-313 36-DW F +43-1-313 36-DW Franz.Marhold@wu.ac.at www.wu.ac.at Thanks for your attention!