The Austrian Supreme Court of Justice (OGH) follows the European Court of Justice (CJEU)’s case law on time-barring of paid annual leave
As we have already mentioned in our last blog entry on paid annual leave provisions, also in Austria amendments to time-barring of paid annual leave to which employees are entitled by law are to be expected due to new European Union case law. Now the OGH issued a new ruling (OGH 8 Ob A 23/23z) on this topic which we present to you in this blog entry.
In line with the CJEU’s case law (C-120/21) as mentioned above, also the OGH has ruled that the paid annual leave to which employees are entitled by law is not time-barred if the employers do not comply with their invitation and information obligations regarding the impending time-barring of paid annual leave and therefore do not actively take measures to ensure that employees consume their paid annual leave.
The ruling specifically relates to the case of an employee employed from 2003 to 2020 as gamekeeper and estate manager who in the course of termination of his employment claimed vacation compensation for 322.75 not consumed paid annual leave days, arguing that he was neither invited to consume his paid annual leave nor informed of the impending time-barring.
The OGH initially states in his ruling that even though in general the entitlement to paid annual leave is time-barred after termination of two years after the end of the year in which the right to paid annual leave arose and that employees have in total three years for the actual consumption of the paid annual leave pursuant to Austrian law. However, the OGH in his recent ruling follows the new case law of the European Court of Justice (CJEU) on time-barring of paid annual leave according to which employers are required to inform their employees in a timely manner of the impending time-barring of paid annual leave and to invite their employees to consume their paid annual leave not yet consumed. Therefore, employers are required to specifically warn their employees that their entitlement to paid annual leave will otherwise be time-barred at the end of the carry-over period as permitted by law.
If employers do not comply with these invitation and information requirements, also according to OGH the entitlement to paid annual leave not yet consumed may still be claimed even though the statutory time-barring period has passed. According to OGH the mere fact that the employees would have been granted the paid annual leave if they would have claimed it on-time does not yet result in time-barring of the not-consumed entitlement to paid annual leave.
It is significant that these principles pursuant to European Union law according to the court of appeal do only apply to minimum paid annual leave of at least four weeks as laid down in the Working Time Directive 2003/88/EG and in general do therefore not apply to the fifth or sixth week of paid annual leave pursuant to Austrian law. The OGH has not yet made an explicit comment on the issue of the potential effects to the national entitlement to paid annual leave exceeding the amount provided for under European Union law, since this issue has not been raised in the revision procedure.
In any case, the ruling clarifies the importance of timely fulfilment of the employers’ invitation and information requirements regarding the entitlement to paid annual leave of their employees and illustrates that employers and personnel departments are now further held accountable to monitor their employees’ consumption of paid annual leave. Therefore, it is expected that the ruling will have significant effects on the management of paid annual leave within companies.
We are happy to support you with all issues regarding paid annual leave provisions under labour law.
