The termination of employment in Austria may be challenged (and reinstatement sought) where an employee can establish particular disadvantage, not generally applicable (referred to as a lack of social justification). For example, one might expect age to be put forward as a basis of such challenge, the dismissal of a 50 year old being likely to have greater employment implications than for a younger employee.
Whilst employers are able to justify the termination of employment in any event, based on the relevant factual or financial circumstances, the Supreme Court has clarified recently that the dismissal of a 56 year old does not present automatic grounds upon which to challenge social justification. In particular, such grounds are unlikely to arise where:
- the expected period for finding a new job is about 8 months;
- the employee has found new employment within 3 months,
- new salary is likely to be up to 20% lower;
- there is a duty of care in respect of a child.