In the absence of a ban on dismissal on sick leave or general protection against dismissal in the event of illness, it is generally possible for the employer to unilaterally terminate the employment relationship even during sick leave. If an employee is dismissed during sick leave, dismissed prematurely without good cause, or if the employer is at fault for the employee’s premature departure, the entitlement to continued payment of remuneration remains for the duration provided for by law, even if the employment relationship ends earlier.
The amendment to Federal Law Gazette I 2017/153 also amended § 5 of the Continued Payment of Remuneration Act in such a way that the entitlement to continued payment of remuneration remains in force even if the employment relationship is terminated by mutual agreement during sick leave or with a view to such inability to work.
With regard to the necessity of the employer’s knowledge of the present incapacity for work, a distinction must be made: In the case of amicable termination with regard to the prevention of work, sick leave is precisely the motive for termination and in this context presupposes the employer’s knowledge. In the event of termination of the employment relationship during sick leave, no knowledge of the employer is required.
In a recent decision of 24.05.2023 (OGH 24.5.2023, 8 ObA 4/23f), the Supreme Court denied the right to continued payment of remuneration on the basis of sick leave on the day of the amicable dissolution on the basis of the facts of the case. The specific facts of the case were such that the employee agreed to an amicable dissolution in the morning and was only on sick leave in the afternoon due to the complaints caused by the stressful incident – thus it could not be assumed that the dissolution would be amicably dismissed during the inability to work, even if no closer date for this day was stated on the sick leave.
At the same time, however, the decision clarified that the health-related inability to work generally begins at the time when the employee is actually unable to work – it therefore depends on the objective existence of the incapacity for work. The time at which the sick leave takes place is therefore not to be equated with the time of the objective inability to work. Therefore, if a sick leave is issued retroactively, it can regularly be assumed that the inability to work already existed at this point in time. Since the decision on incapacity for work falls within the professional competence of the doctor, it is sometimes even considered irrelevant in teaching if the employee has attempted to work because he considered himself sufficiently capable of working. Irrespective of this, however, the employer also has the opportunity to prove that there was objectively no incapacity for work, regardless of the sick leave.
Thus, in the event of actual incapacity for work, a (retroactive) sick leave on the day of the amicable dissolution could also lead to an obligation on the part of the employer to continue to pay remuneration.
For further information, please contact:
Hanna Lemberger, Lawyer
Zumtobel + Kronberger, Salzburg
t: +43 662 62 45 00
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