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Incapacity for work in Austria - top 10 questions
16th Sep 2024
In this article, we have processed answers to the most common questions about incapacity for work in Austria and the situations that can arise during this period. We answered questions about employees' rights, who is protected from termination of employment, and what procedures you should follow if you are terminated from employment. What should you do if your employer has fired you by phone? When does your termination period start? And what is the right way to respond if you disagree with the termination? This article will give you a clear overview of your options and rights in the event of incapacity for work in Austria.
Questions and Answers:
- Can I be terminated during the period of incapacity for work?
- Who is protected from termination from the employment?
- My employer fired me during my incapacity to work. Is it okay if he fired me by phone?
- I was fired during my incapacity to work. When does my termination period start?
- What are the termination periods for termination of employment by my employer?
- What are the termination periods for termination of employment by the employee?
- I was fired during my incapacity to work. Will my employer continue to pay my wage?
- I do not agree with the termination during my incapacity to work, can I appeal against it?
- What should I do if I want to appeal the termination?
- Can I travel to my home country if my incapacity for work started in Austria?
1. Can I be terminated during the period of incapacity for work?
Yes, an employer can terminate an employee during the period of incapacity for work, as long as the employee does not belong to the group of persons protected from termination. The reason for the termination does not have to be given. However, the termination must not be unjustified. This means that an employer should not terminate an employee, for example, because of a one-off flu. The employee could appeal against such a termination.
The employer does not have to give a reason for the termination, but in the event of a court case, the employer must prove its justification.
2. Who is protected from termination from the employment?
The following persons are protected from termination during incapacity for work:
- pregnant women,
- persons on maternity and parental leave,
- disabled persons (with a disability rate of more than 50%),
- soldiers.
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3. My employer fired me during my incapacity to work. Is it okay if he fired me by phone?
Yes, termination can be given by telephone, in writing or in person (whether it is by phone call, text message or Whatsapp or Messenger, registered letter or e-mail). Written termination is not required, but is recommended for the purposes of any evidence and to determine the length of the termination period. If the termination is given by telephone (via a call), it is difficult to prove the termination.
The employee may give termination in the same form as the employer, i.e. in person, in writing and by telephone.
4. I was fired during my incapacity to work. When does my termination period start?
The termination period starts on the day after the day on which the termination is delivered, notified or handed over. This means that if an employee receives termination on, for example, 20th of June, the termination period starts on 21st of June. Incapacity to work does not affect the termination period and does not extend it.
5. What are the termination periods for termination of employment by my employer?
The duration of the termination period depends on the duration of the employee's employment. The statutory termination periods are:
- 6 weeks - if the employee has worked for 1 to 2 years,
- 2 months - if the employee has worked for 3 to 5 years,
- 3 months - if the employee has worked for 6 to 15 years,
- 4 months - if the employee has worked for 16 to 25 years,
- 5 months - if the employee has worked for 26 years or more.
The employer must comply with the statutory time limits, unless the collective agreement specifies different termination periods.
By agreement between the employee and the employer, the termination period may be extended by up to 6 months. This applies to termination of employment by both the employer and the employee.
6. What are the termination periods for termination of employment by the employee?
The employee is obliged to comply with the statutory termination period, which is 1 month (unless otherwise agreed with the employer). The employment relationship must end on the last day of the calendar month. This means that if the employment relationship is due to end on 31st of July, for example, the employee must give one month's termination on 30th of June.
Read also:
Working in Austria and your entitlement to cash benefits
What benefits are you entitled to while working in Austria and what conditions do you have to meet to get them?
7. I was fired during my incapacity to work. Will my employer continue to pay my wage?
Yes, the employer is obliged to continue to pay the employee's wages (in the amount of 100% and 50% thereafter). The payment of wages continues after the end of the employment relationship if the entitlement to wages continues. The duration of full and half-payment depends on the duration of the employment relationship. If the incapacity for work continues after the end of the employment relationship and after the employer has stopped paying the wages, the employee will be paid sickness benefits from the health insurance company. Sickness benefit is paid for a maximum of 52 weeks if the conditions of entitlement are met.
Important: The employer does not continue to pay wages after the end of the employment relationship if the employee has received termination before the start of the incapacity for work.
8. I do not agree with the termination during my incapacity to work, can I appeal against it?
Yes, an employee can appeal a termination. However, the following requirements must be met:
- the employee has been employed for at least 6 months,
- the termination is damaging the employee's essential interests,
- the works council has not agreed to the termination.
If the employer intends to terminate the employment relationship with the employee, he must inform the works council in advance.
9. What should I do if I want to appeal the termination?
If the employee disagrees with the termination, he or she must ask the works council to file an appeal. The employee has one week from the date of the termination to appeal.
However, if the works council disagrees with the employee and does not appeal, the employee can go to an employment tribunal and appeal themselves. He has two weeks from the expiry of the deadline for the works council to file an appeal.
10. Can I travel to my home country if my incapacity for work started in Austria?
Yes, but only with the consent of the treating doctor and the health insurance company. If the employee does not ask the treating doctor and the health insurance company for permission to travel, he or she risks being terminated.
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