In a legal dispute it is important to know whether the employment relationship between employer and employee is based on a collective agreement, the individual labour law in the form of the Employee Act is applicable and whether a written or oral working contract was concluded. A carefully concluded written employment contract helps to prevent most disputes. Should these not be avoidable, most often the termination of an employment relationship (by dismissal as one-sided declaration of will or in the course of a mutual agreement) or dismissal is followed by a legal dispute. Should a professional change or an addition to the family be planned, it pays to clarify issues such as severance indemnity (new, old) or maternity leave and child-care allowance in advance.
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At the beginning of every employment relationship, the employer is obliged to issue a position specification statement where he/she generally describes the future employment relationship. For evidence purposes it is advised to conclude a labour contract (free of charge). This enables the labour contract parties to agree on regulations which exceed the legal minimum content. Here, for example regulations regarding a revocable lump sum overtime payment, a competition clause, the refundable training costs or use-it-or-lose-it rules come into question.
Every workplace must be in accordance with occupational safety regulations. Therefore, an evaluation should be carried out which should be recorded in writing.
At the beginning it is also important to clarify, whether the employment relationship is based on a collective agreement, which already contains general regulations for worktime, payment or other framework conditions. The applicable collective agreement depends on the company´s business license.
Furthermore, when hiring foreigners, a work permit is required. Without this, there is no lawful employment relationship and the employer is threatened by expensive fines because of unlawful employment.
Before start of employment, the employer must register the employee with the social insurance company. This can be carried out in form of a full registration before the employment starts or “double registration” with a minimum registration before start of employment and a full registration within 7 days after start of employment.
A wage account must be opened for every employee.
Workplace harassment describes the situation when an employee is intimidated, hurt, excluded or sometimes even forced out of the job intentionally by colleagues, superiors or even the employer. Long-term harassment can lead to serious health problems. Therefore, the harassed employee is obliged to inform the employer of this health hazard and to ask him/her to take appropriate measures. Should the employer take no or insufficient measures, this entitles the employer to a premature resignation. In the event of harassment or discrimination according to the Equal Treatment Act, the harassed person can claim damages against the employer and the harassing work colleague.
Apart from the general occupational health and safety regulations, the Maternity Protection Act contains comprehensive protection for pregnant women and mothers (prohibition of night work, working overtime, etc.). Expectant mothers must inform the employer about the pregnancy and the estimated date of birth, as soon as they know they are pregnant. A medical certificate confirming the existing pregnancy and the estimated date of birth must be given to the employer if he/she demands it. From the moment of the pregnancy, the mother is protected against dismissal and redundancy, which ends when the protection period ends. This begins 8 weeks before and ends 8 weeks after birth. During this protection period, pregnant women and mothers may not work and receive maternity allowance by their health insurance.
After the protection period ends, depending on the number of employers of the company, there is the possibility to work parental part-time. Here, the mother or the father must live in the same household as the child. From the moment of the written notice of the part-time occupation, there is a further protection against dismissal and redundancy p to four weeks after the child´s fourth birthday.
The prohibition of underpayment of employers according to the Act against Wage and Social Dumping (LSD-BG) aims at the dishonest resp. unrighteous competition by foreign employers. National companies, who have registered resp. have to register their employees with a regional medical insurance in Austria, are affected. If an employer hires an employee without paying the due fee according to law, regulation or collective agreement, he commits the administrative offence of “underpayment” and must explain him/herself. This can amount up to a fine of € 1.000,- per underpaid employee and in the event of repetition up to a fine of up to € 50.000,-. If there is no employment agreement but for example only a free service contract, the LSD-BG does not apply.
Basically the employee can be dismissed during sick leave. However, despite the termination of the employment relationship with the ending of the period of notice, the employee is still entitled to sick pay for a period determined by law.
Costs of education can be reclaimed if these are costs which were actually paid and are provable by the employer (course costs, travel expenses, material costs, possible labour costs), which conveyed special theoretical and practical knowledge to the employee.
The refund must by all means be agreed in writing as soon as all necessary information regarding cost, content and duration of education are stated. Furthermore, the employee must be of full age at the time of the agreement, the commitment period can be a maximum of 5 years (in some exceptions 8 years) and the agreed sum must be refunded in regular monthly instalments.
The dismissal is the termination of the work relationship without prior notice. Thus it is only justified, if the employee´s behaviour impairs the employer´s interests so severely, that it is unacceptable to continue the employment up to the next possible date of notice. The dismissal must be expressed as soon as the employer gains knowledge of a reason for dismissal stated in the law. A later expression of dismissal is not effective, as the impairment cannot be regarded as infeasible then. However, the law allows the employer a short period of reflection between gaining knowledge of the reason for dismissal and the expression of dismissal, in order to obtain information on the legal situation. Furthermore, there is the possibility of releasing the employee from duty until the factual situation or the legal situation is clarified.
Attention must be paid in the “planned, reprehensible enticing away” of higher qualified employees for the purpose of using their experiences, services resp. relations with the new competitor, and to entice away customers of the former employer with the new employees. This represents a violation of the competition law.
Basically, the employer wants to avoid that informal operating capital such as customer contacts, special knowledge and strategies benefit a competitor company in the event of a job change. With the competition clause, the employee should be prevented from changing to a competitor immediately or after a certain time (transition period) or to found a competitor company him/herself.
The competition clause is only valid under certain circumstances and depends on the type of termination of the employment relationship. The employer can also claim his/her rights deriving from the competition clause if he/she terminates the employment relationship and states that he will pay the employee the remuneration he/she is entitled to during the period of limitation.