Q&A: case management for employment litigation in Austria

Case management

What is the typical sequence of procedural steps in an employment dispute?

Filing of a claim by the plaintiff is followed by a reply submission by defendant and then first preparatory court hearing (settlement talks; if they fail, judge sets procedural calendar). Depending on the scope of the claim, there may be further court hearings to take evidence. Then follows the closure of proceedings and a written decision, usually within six months from closure.

Employment disputes before the district court/labour court (court of first instance) usually take one to two years from making a claim until a written decision. Appeals can be filed within four weeks.

What rules apply to case management?

The first, preparatory court hearing serves the purpose of case management hearing. The parties to a dispute are meant to have made all relevant assertions of fact by then and presented/offered all evidence the court is supposed to take following that hearing (where settlement talks fail).

The judge has much discretion on how to structure proceedings (hearing calendar, etc), and the parties are expected to cooperate with the court and assist in dealing with the relevant issues efficiently.

Under what circumstances can amendments to claims be made?

Once a claim has been served upon the defendant, amendments to claims require the defendant's approval, unless the amended claim is directed at a limitation of the original claim.

Can additional parties be brought into a case after commencement?

Bringing additional parties into a case after commencement would amount to additional claims that, generally, require additional lawsuits. Additional parties would also mean an amendment to the initial claim. Either party can, however, request a third party to join them in the proceedings and support their claim and assertions of fact as intervening party if the outcome of proceedings would also affect the (legal) interests of the intervening party (eg, potential recourse claims against intervening party).

Can proceedings be consolidated?

Yes, proceedings can be consolidated if they are pending before the same court and either plaintiff or defendant (or, typically, both) are identical. Consolidation need not result in a joint decision, because consolidation foremost only serves efficient case management. A joint decision can be handed down if all claims were ripe for decision at the same time.

Are there any special considerations for class actions, multi-party or group litigation?

Multi-party actions are permissible under general provisions of civil procedure without special considerations, but Austria still has no real legal framework for class actions and group litigation in an employment context. 'Collective' actions can be filed by or against the works council and representative groups (chamber of employees; chamber of commerce; trade unions) in specific proceedings that are aiming at facilitating litigation in cases pertaining to a majority of employers or employees. As such, those specific proceedings could be viewed as class actions in an employment context. The downside of both sorts of proceedings (by or against the works council; amongst employer/employee representative organisations) is that they only achieve a declaratory judgement and are therefore not enforceable. As such, they cannot resolve on individual employment claims and mostly serve the purpose of clarifying legal claims on a more collective level.

How is witness, documentary and expert evidence dealt with?

Austrian rules on civil procedure do not provide for a discovery process. Each party to an employment dispute must offer to the court all evidence proving their case (documents; witnesses; experts), and the court will then summon witnesses (who have a legal obligation to show up before court) and appoint expert witnesses, where required.

Also, there are no specific rules of evidence. Deciding judges can appraise all evidence at their own discretion and decide by themselves which assertions of fact, based on evidence presented, are proven with a preponderance of the evidence.

Can a witness be compelled to give evidence? Can a witness give evidence from abroad?

Yes, witnesses must give evidence and if they (repeatedly) fail to show up before court without sufficient justification (eg, illness), the court can impose penalties and, ultimately, also have witnesses arrested and coerced to appear.

As a novelty, witnesses can also give their testimony from abroad by way of video-conferencing and with the assistance of the competent court at the foreign (EU-)residence of the witness (implementation of EU-Regulation on Taking of Evidence).

Is cross examination of a witness permitted?

Yes, the presiding judge and both parties can ask their questions to each of the witnesses presented, regardless of which side's witnesses they are.

What steps can a party take during proceedings to achieve tactical advantage in a case?

Given the free appraisal of evidence and the rule that each party must prove their case, tactical advantages can mostly be achieved by sowing the seeds of doubt as to opposing party's evidence presented (eg, countering statement by opposing key witness through cross-examination or written evidence proving the opposite).

One common challenge by employees in case of redundancies is based on an assertion that the termination of the employment relationship lacks sufficient social justification, because the employee is more adversely affected than is usual. To prove this claim, employees must assert and offer evidence (opinion by court-appointed expert on the job market) that finding new gainful employment (comparable position; comparable income) takes much longer in their case (above nine months) than in the usual case (below six months). More often than not, however, employees find new employment faster than they feared and sometimes even faster than the court-appointed expert could foretell. Time thus often works to the detriment of plaintiff-employee, because once a comparable job was found, the case is essentially irrelevant. It is thus often not in defendants' interest to see such a case through quickly.