08/18/2014 Abolition of working place is no reason for terminating an employee in part-time maternity leave – according to the court

An employee was employed full-time as a “director of sales” in a hotel prior to her maternity leave. After being – with a disruption – twice on maternity leave she wanted to return to her employment, but working 36 hours (i.e. part-time).

During her absence some reorganizations
of the hotel chain took place. For this, her prior job didn’t exist in this form anymore, but has been modified to a certain extend. However, the court has decided that the “new” job is the same working area, because the successor is using the same locality, resources, etc.

As the full-time employed successor familiarized very well with this job position, the returning employee was offered a position as “director of trainings”, where she would have had the same earning, however, but would be subordinated to her old position. The returning employee refused this offer.

As a consequence, the company wanted the court’s acceptance for terminating the employee, according to § 10 Abs. 4 2. case MSchG, based on management requirements, which made a continuation of the employment impossible.

The OGH rejected this termination in the verdict 9 Ob A 50/14i: First of all, the “management requirements” weren’t proven enough by the company. Second, it would contradict the  Mutterschutzgesetz (maternity protection law), if an employee could be terminated, only because of the successor being familiarized well with this position; The legislator consciously condoned the possibility of an employee returning to this former position part-time, “displacing” a qualified successor, who has been substituting this employee during her maternity leave.
In the case of maternity leave, the employment contract of the successor could be set up in such a way, that it ends with the come-back of the employee on maternity leave -  or in case of part-time –  that the successor’s contract is afterwards also part-time, as a “supplement” to the returning employee.

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