Developments in Austrian Employment and Labour Law in light of COVID-19

The trends and developments in Austrian labour law over the last 12 months have once again been strongly influenced by COVID-19 issues.

As of the COVID-19 measures coming into effect in mid-March 2020, Austria has experienced the highest employment decline in the last 70 years, with unemployment reaching record levels.

In general, the COVID-19 crisis probably left only smaller segments of the labour market entirely unaffected. Flexible working hours or home office practices have been introduced in many industries where it was previously almost impossible.

The option to work from home is a good protection against infection, unemployment and financial loss, but despite its strong presence in the public debate, it was not even possible for a half of all employees. The majority of workers either continued to work from their usual place of work, became unemployed or were put on short-time work for short or long periods. Nevertheless, for new generations, the possibility to work from home is immensely important in the choice of work.

For employees who lost their jobs as a result of COVID-19, the opportunity arose to undergo retraining/advanced training in order to work in new industries. The hardest-hit sector in this context is certainly the tourism and gastronomy industry. Many employees have questioned the working hours prevailing in the tourism and gastronomy industry and have undergone retraining so that, for example, an office job or other “nine to five” job is possible.

Employers are thus faced with the task of protecting employees returning to work from the home office from infection by taking appropriate measures on the job. The home office also brings flexible working hours into focus. Therefore employers are being forced to react by developing and implementing alternative working time models in order to attract employees – especially skilled workers.

In the media, it has certainly been the voices critical of the COVID-19 measures that have received the most attention. This article therefore highlights the consequences for workers if they refuse to comply with such measures.

Measures to protect against infection with COVID-19 have been widely criticised. For some, they restrict personal freedom too much or are economically unreasonable. For others, these measures do not go far enough and they complain about inadequate protection. This is independent of whether the measures are taken by authorities (or are not taken) or whether they originate from the employer.

This article deals with the labour law consequences of not complying with COVID-19 protection measures. The rejection of COVID-19 protection measures can take many forms and can occur as a general rejection or as a refusal to comply with specific measures (eg, refusing to wear an FFP-2 mask). The criticism of COVID-19 protection measures affects the right to freedom of expression. The request for information about the health status and the observance of certain measures affects data protection and the protection of personality as well.

Rejection of COVID-19 measures – consequences under labour law

The COVID-19 issue is polarising public debate and impacts labour law. In this context, the question arises as to what the consequences are for the employment relationship.

Behaviour and justification

It is not self-explanatory what behaviour qualifies as a rejection of COVID-19 protection measures. Criticising measures against the spread of COVID-19 as too far-reaching or not far-reaching enough are not to be equated with a refusal to comply with them.

The justification for rejecting measures is sometimes based on so-called conspiracy theories. A conspiracy theory is sometimes described as an attempt to explain a state of affairs, an event or a development by using certain narrative patterns; ie, by describing the purposeful, conspiratorial action of a usually small group of actors for a usually illegal or illegitimate purpose. For conspiracy theories, it is characteristic that the truth of a statement made cannot be verified.

Freedom of expression

The right to freedom of expression is the guaranteed subjective right to free speech as well as free expression and (public) dissemination of an opinion in speech, writing and image as well as all other available means of transmission. It is protected by the Fundamental Rights Charter and enshrined in the Austrian Constitution.

The fundamental right of freedom of expression serves not only to ascertain the truth and disseminate facts, but also to express one’s – nonsensical, offensive or reprehensible – opinion.

The restriction of the right to freedom of expression is permissible only in exceptional cases and only for a legitimate purpose, for example, where it endangers peaceful coexistence or security, or where the fundamental rights of others are violated. In Austria, it is forbidden to incite hatred against other people through public statements. The insulting and belittling of people on the basis of their age, gender or sexuality is also prohibited.

Within the limits outlined, denying COVID-19 also falls under the right to freedom of expression. It is of interest whether the belief in the correctness of a conspiracy theory can justify the rejection of protective measures against COVID-19.

Dismissal as a consequence

Austrian labour law does not require reasons for an ordinary dismissal. Under the principle of freedom of dismissal, it is not necessary for a termination to have a reason to be effective. Accordingly, no justification must be given at the time of dismissal. This does not, however, mean that an employee has no protection against dismissal for reprehensible motives or that he or she cannot challenge a dismissal that implies social hardship for him or her.

From the aspect of the protection of fundamental rights, it is therefore of interest whether the possibility granted to the employer by the legislature to terminate the employment relationship because of a statement made by the employee constitutes a violation of the fundamental right to freedom of expression. It must be emphasised that expression of an opinion is not a justification for dismissal, but conduct that violates COVID-19 prevention measures may be considered a justification.

Dismissals can be challenged in this context on the grounds of immorality. The immorality of the dismissal requires that a completely improper motive – and in particular for reasons of personal protection – was decisive for the dismissal. In any case, the employee may not be discriminated against directly or indirectly on the basis of his or her philosophy of life.

Another ground for contesting dismissal is social unacceptability. In this case, the dismissal means substantial social hardship for the employee.

In this case, however, the employer can prove that the dismissal is justified by circumstances in the person of the employee that adversely affect the interests of the business. Such a circumstance may also be justified by the employee’s denial of COVID-19, as such conduct may be likely to reflect negatively on the employer’s image and deter potential customers or other business partners from entering into contractual relations with the employer. Whether this requirement is met must be assessed on a case-by-case basis.

Dismissal for cause

Under certain circumstances, a denial of COVID-19 may also justify dismissal for cause with immediate effect. Whether a ground for dismissal is established must also be assessed on a case-by-case basis. The employer’s line of business, the employee’s position and the extent of conduct play a role. Higher standards are to be applied to a worker employed in a hospital or a pharmacy than to a chef, for example.

In cases where the employee can qualify as a social hardship case, a denial of COVID-19 can be a reason justifying dismissal, which, however, is not immediate. In order for an employer to immediately dismiss an employee for cause based on a denial of COVID-19, the hurdle to be met by the employer is higher since the employer must show a more significant impact. This is then the case if the allegations are accompanied by statements that are also relevant under criminal law.

Discrimination

An employee shall not be discriminated against, either directly or indirectly, on dismissal of employment. The characteristics protected against discrimination also include philosophy of life. A philosophy of life is primarily understood as the totality of personal values, ideas and perceptions based on knowledge, tradition, experience and feelings, which concern the interpretation of the world, the role of the individual in it, the view of society and partly also the meaning of life. It is thus the fundamental cultural orientation of individuals, groups and cultures.

The term serves as a collective term for all religious, ideological, political and similar guiding views of life and of the world as a whole of meaning as well as for the interpretation of the personal and communal location for the individual understanding of life. Philosophy of life is therefore not a scientific system or systems, but interpretations in the form of personal convictions of the basic structure, mode and function of the world as a whole. Insofar as a philosophies of life strive for completeness, they include views of mankind and the world, values, life and morality.

It is doubtful whether the denial of COVID-19 can be qualified as a conspiracy theory philosophy of life. During the legislative process, atheism was cited as an example of a philosophy of life.

If one looks at this critically, even if one assumes that the denial of COVID-19 can be qualified as a philosophy of life, there is still nothing to be gained for the employee. Discrimination only exists if the employment relationship is dismissed due to the protected characteristic (philosophy of life). In most cases, however, the dismissal is due to the behaviour of the employee – their denial of COVID-19.

Since this behaviour is due to the possession of a protected characteristic (certain belief), the question of the existence of indirect discrimination arises. If there is an objective justification to reach a legitimate goal and the means of achieving this goal are appropriate and necessary, a weighing of interests to be carried out will be in favour of the employer.

The termination of the employment relationship can usually be justified with operational interests (maintenance of peace within the company and/or the reputation of the employer). The result may be different, however, if the employer did not terminate the employment relationship of other employees who are in a comparable position and engage in comparable behaviour that is not related to any characteristic protected against discrimination.

Non-compliance with COVID-19 measures

The Austrian Supreme Court recently dealt with the question of whether a dismissal for non-compliance with measures to contain the COVID-19-virus was discriminatory with regard to an employee’s philosophy of life (9 ObA 130/2021i). Please see Fellner Wratzfeld’s Chambers Expert Focus article on this decision for further discussion.

The Equal Treatment Act stipulates that no one may be directly or indirectly discriminated against in connection with an employment relationship on the basis of their philosophy of life. If an employee is nevertheless dismissed because of his or her philosophy of life, he or she can challenge this dismissal in court in accordance with the Equal Treatment Act.

In the decision, the Supreme Court clarified that the term “philosophy of life” is closely related to the term “religion”. This means “guiding view of the world as a whole” and “individual understanding of life”. Criticism of laws or ordinances, however, is not covered by the protected legal interest of philosophy of life. In this regard, the Supreme Court also referred to its previous decision, according to which a critical view of asylum legislation and practice is not part of philosophy of life.

If an employee is dismissed because he or she is critical of the measures in place to contain the COVID-19 and refuses – despite repeated requests and threats of consequences – to comply with these measures, this does not constitute discrimination on the basis of philosophy of life.

Refusal to wear an FFP-2 mask

A lower court dealt with the question of whether the dismissal of an employee who refused to use an FFP-2 mask (or one of a comparable standard) in the performance of his or her job and could not produce a justifying medical certificate was legally effective. The aspects of the Equal Treatment Act, the Disabled Employment Act and the employer’s duty of care were examined.

Criticism of COVID-19 measures does not represent a philosophy of life, but rather criticism of specific political decisions. Therefore, the views that criticise the COVID-19 measures taken do not fall under the protection of the philosophy of life. In addition, the employer has a legitimate and understandable interest in complying with prescribed protective measures, which could have justified any discrimination.

Duty of care

The employer has a duty of care towards its employees. In addition, the employee is obliged, in the interests of protecting other workers, to prescribe and enforce a minimum level of preventive measures in the company in order to comply with legal and regulatory requirements. If an employee refuses to comply with a measure that is mandatory under the statutory provisions and thereby exposes the employer to administrative penalties, the grounds for dismissal for gross breach of duty are fulfilled.

Depending on the branch of business – medical area, contact with vulnerable people – the employer’s right to issue instructions is considered to be particularly extensive and the interests of the employer to be predominant.