In a decision recently obtained by our firm, the Supreme Court once again made clear that there is no prohibited „motive dismissal“ (Motivkündigung) where an employee refuses the employer’s wish for a change to the employment contract and is dismissed as a result (OGH of 29 March 2023, 8 ObA 11/23k).
The so-called „motive dismissal“ constitutes, alongside the „socially unjustified dismissal“, probably the practically most significant ground for challenging employer-initiated dismissals in Austria. Accordingly, a dismissal may be challenged if it was made on account of the employee’s evidently not unjustified assertion of claims from the employment relationship that had been called into question by the employer. The purpose behind this rule is to prevent „retaliatory dismissals“ by the employer following the successful or attempted enforcement of claims from the employment relationship by the employee.
However, where the employer, by the route provided for by the legal order – namely by an offer of amendment – seeks a change of the contract concerning dispositive contractual points, and the employee does not consent to the change desired by the employer and is subsequently dismissed by the employer, there is no prohibited „motive dismissal“. In the employer’s attempt to achieve, by a mutual agreement, a deterioration – taking effect only in the future and not legally impermissible – of the terms of the employment contract, there lies no „calling into question“ of the employee’s hitherto existing claims. The position would be different only if the employer’s offer of amendment were the reaction to the employee’s assertion of not evidently unjustified claims and amounted, in substance, to placing him before the choice of abandoning that demand or having to accept the termination of the employment relationship.
That was not the case in the facts underlying the highest court’s decision. For there, the reasons for the endeavour of the defendant employer – represented by our firm – to agree with the claimant employee, by way of an addendum to the employment contract, a new job description and function designation, lay in operational restructuring. Neither the salary, the activity, nor the collective-agreement classification of the claimant would have been changed. To that extent, the Supreme Court, too, confirmed the decision already taken by the appellate court following an appeal drafted by our firm, according to which there is no „motive dismissal“, and dismissed the action.