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Austria / Supreme Court / [2019] ECLI:AT:OGH0002:2019:RS0132518

D. vs. B.

Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court
Decision date:

Key facts of the case:

The plaintiff was employed by the defendant (a medical doctor) for six hours per week. The collective agreement for employees of doctors, doctors, and medical group practices was applicable to this employment. The defendant terminated the employment relationship with a notice period of 14 days by 30 June 2017. The plaintiff sought the payment of 1,018.20 EUR in termination benefits including special payments and holiday compensation for the period from 1 July 2017 to 30 September 2017. She argued that her employment relationship could have been terminated on 30 September 2017 at the earliest pursuant to § 20 (2) Austrian Employee Act (old version). Since mostly women are employed part-time, the Austrian provision providing for a shorter termination period for part-time workers would be in breach of EU law and must therefore remain unapplied.

Key legal question:

§20 (1) Austrian Employee Act (old version) exempted a group of part-time employees, whose working time was less than one-fifth of the normal working hours, from the application of the longer termination and notice periods. The Supreme Court had to decide whether this Austrian provision providing for a shorter termination period for part-time workers constitutes an inadmissible (indirect) discrimination based on gender.

Outcome of the case:

The Supreme Court reasoned that part-time employment is still predominantly pursued by women. According to recent statistics, part-time work was also typical for women in 2017. According to the settled case-law of the European Court of Justice, lower remuneration arrangements and terms of employment for part-time workers, including conditions for termination of employment, may constitute indirect discrimination based on gender on the basis of Article 157 TFEU. The Supreme Court rules that since there is no substantive reason for the unequal treatment of minor employed workers with respect to dismissal rules, the provision of § 20 (1) Austrian Employee Act (old version) is not in accordance with Union law, in particular with Articles 21 and 23 CFR in conjunction with Articles 1 and 2 (1) (b) of Directive 2006/54/EC and § 4 (1) of the Framework Agreement on Directive 97/81/EC. The Supreme Court ruled that the judgments of the lower courts are to be amended so that the decision reads: "The defendant is guilty of paying 1,018.02 EUR to the plaintiff with 4% interest since 1 July 2017 within 14 days.