10/28/2014 Mothers – Fathers / Ending of employment

Probation period
During probation period an employment contract can be ended, if the pregnancy hasn’t been the reason for this. And if it has, the ending would be ineffective due to discrimination.



Fixed term contract
If an employee gets pregnant while being employed on a fixed term, the duration of the contract will extend until the beginning of the maternity leave (i.e. 8 weeks prior to the expected date of birth). The contract only expires with the original date, if there has been a reason for the fixed term contract (e.g. replacement of an employee on maternity leave, educational purpose, seasonal work, work during vacation,…).


Termination and dismissal protection during pregnancy

  • Employees can’t be dismissed during pregnancy and up to 4 months after giving birth
  • The protection starts with conception
  • As soon as the employer has spoken out the termination, the employee can show the certification (which states that the employee is pregnant) to the employer within 5 days. The mother to be can also show this certification at a later stage, if she couldn’t provide this certification (e.g. because she wasn’t informed about the pregnancy). Kindly note that in any case the employee has to be pregnant in the moment, when the termination was spoken out. In case of doubts the employee needs to prove this.

 

Termination and dismissal protection during maternity/paternity leave and parental part-time

  • During parental leave or parental part-time the employee is protected from termination up to 4 weeks after return, however, maximum until the 4th birthday of the child
  • If the parental leave/parental part-time doesn’t start right after the statutory maternity leave, but later, the protection is effective with notification about the parental leave/parental part-time
  • If the parental leave/parental part-time is divided between both parents than the protection of each parent will start with notification about the parental leave/parental part-time, but the earliest 4 months prior to the parental leave/parental part-time.
    • Example: Both parents inform their employers right after the statutory maternity leave about their parental leave: The mother takes one year until December, 31st 2013, the father right afterwards until September, 30th 2014. The mother is protected until 4 weeks after her leave, and the father’s protection begins with September, 1st 2013 and ends 4 weeks after September, 30th 2014.
    Kindly note that even without the “special protection” the employee is still protected from motive-driven termination.


A termination during the protection period can only be spoken out with the acceptance of the labour court. The termination will be only accepted due to following reasons:

  • Upcoming reductions or closing of the company
  • After the second birthday of the child:
    • If the reasons are in the character/person of the employee and effect the interest of the company negatively (e.g. mobbing)
    • If there are company needs, which conflict the continuation of an employment
  • If the company has been closed no acceptance prior to the termination is necessary

A dismissal is possible, if the labour court accepts it and the reasoning is according to law. Such reasons could be:

  • Culpable neglect of duty (e.g. neglect to work for longer time without any legitimate reason – such could be: unexcused absence days, massive delays, …)
  • Disloyal actions during work or unauthorized acceptance of benefits from third parties without knowledge of the employer
  • Sellout of company secrets or practice of a disadvantageous side business without acceptance of the employer
  • Assaults or serious libel against other employees, the employer, or  employer’s relatives
  • Commitment of specific crimes:
    • Intentional criminal action, which is punishable with imprisonment for more than one year
    • Criminal action with enrichment-intensions, which is punishable with imprisonment

 

Mutual agreement

Ending an employment with a mutual agreement is always possible. In order to have evidence it is advisable to have it in writing. For under-aged mothers and fathers (under 18) the law demands writtenness.

If you have any questions, please just send a mail to welcome@huebner.at or contact one of our specialists directly.

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