LICHTENSTRASSER v. AUSTRIA
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
1. The applicant, Mr Stefan Lichtenstrasser, is an Austrian national, who was born in 1977 and lives in Pfaffstätten. He was represented before the Court by Mr R. Kilches, a lawyer practising in Vienna. 2. The applicant was employed by the C. company from 1999 to 2004. On 9 November 2004 he attended a trade show for young entrepreneurs and gave an interview to a journalist. In this interview, he stated that in his opinion it was only possible to develop ideas in one’s own company, whereas this was difficult when working for an enterprise. He further declared that he intended to set up his own company together with a partner. He explained that they were not discouraged by the fact that a loan and a lot of work input was required. This statement was quoted on 10 November 2004 in the daily newspaper “Wirtschaftsblatt” in a report on the topic why young people dared to become self-employed, under the headline “We simply want more freedom”. One of the applicant’s superiors read the newspaper article and confronted the applicant with it on 16 November 2004. 3. The next day the applicant was told that the company wished to end the working contract. In order not to harm his future career, his superior advised him to either give notice out of his own motion, or end the contract in mutual consent (einvernehmliche Auflösung). If he did not choose one of the two options, the company would dismiss him. 4. After having reflected on the options, the applicant ended the contract in mutual consent with the company by a signed agreement dated 17 November 2004. The parties agreed that the contract ended on 30 November 2004 and that the applicant received the statutory dismissal pay (gesetzliche Abfertigung) of three months’ salary. They agreed that the applicant was off duty from that day on. The parties however did not agree on the payment of a compensation for the dismissal of the applicant. 5. On 24 November 2004 the applicant, represented by counsel, filed an action against his former employer challenging the mutual agreement at the Vienna Labour and Social Court (Arbeits- und Sozialgericht). He claimed that he had been under duress when signing the agreement. By terminating the employment agreement mutually he had waived several entitlements which he had not been informed about. 6. The applicant set the value of the dispute at 4,500 euros (EUR). The opponent company objected to this value and argued that the action rather concerned a declaratory judgment that the contract was still in force. According to the law the value should thus be set at EUR 462,000 (i.e. ten years’ salary), but at least EUR 138,600 (i.e. three years’ salary). The court set the value at EUR 138,600. 7. In its judgment of 18 July 2006 the Vienna Labour and Social Court (Arbeits- und Sozialgericht) dismissed the applicant’s claim. In its reasoning the court noted that the applicant had had time to reflect on the possibilities offered to him by his employer and read the agreement before signing it. The court found that the applicant was under no pressure when signing the agreement and his superior had not misused the special emotional situation of the applicant. The court also noted that the applicant obviously regretted having agreed on the termination without receiving a compensation for the dismissal. 8. The applicant appealed and argued, inter alia, that the value was set too high and that the legal reasoning was wrong. He also argued that not only the State but also the employer were held to observe his rights under Article 10 of the European Convention on Human Rights (“the Convention”). 9. On 25 July 2007 the Vienna Court of Appeal upheld the decision on the merits and the value at issue, holding that the value as set by the first instance court was not against the law. It noted that the value determined by the court of first instance was only challengeable if it was contrary to the law, but apart from that there was a margin of discretion afforded to the first instance. The Court of Appeal pointed out that the first instance had set the value at a fairly low rate. 10. The applicant lodged an extraordinary appeal with the Supreme Court and again argued that the employer had disregarded the applicant’s rights under Article 10 of the Convention. 11. On 28 November 2007 the Supreme Court refused to deal with the merits of the case for lack of an important question of law; it held that it had no jurisdiction to alter the set value at issue. The applicant was obliged to pay the costs of the court proceedings and of the opponent’s lawyer. This decision was served on the applicant’s counsel on 23 January 2008. 12. According to Austrian labour law, an employee can in principle be dismissed without the employer being obliged to give any reason. The employer only has to respect the period for giving notice (Kündigungsfrist) and the dismissal date (Kündigungstermin). Only in case of a dismissal without notice (Entlassung) the employer would be obliged to rely on an important reason prescribed by law. 13. Section 29 of the Private Employees Act (Angestelltengesetz) stipulates that in case the employee is sent off-duty after a dismissal or in case of a dismissal without notice without an important reason, he or she is entitled to compensation for the dismissal (Kündigungsentschädigung). The employee is hence entitled to the full salary until the end of the period of notice and the aliquot part of the Christmas bonus (Weihnachtsgeld) and holiday pay (Urlaubsgeld). Furthermore the employee is entitled to a compensation for any vacation he did not consume (Urlaubsentschädigung). 14. In addition to the compensation for dismissal an employee is entitled to dismissal pay (Abfertigung) according to Section 23 of the Private Employees Act. This dismissal pay is paid out if the contract was concluded before 1 January 2003 and the employee had worked for the company for more than three years. The amount of the dismissal pay depends on the years of service. 15. In case an employment contract is terminated by mutual agreement, the parties are free to agree on the payment or the amount of the compensation for the dismissal. However, the payment of the dismissal pay is compulsory. 16. According to Article 879 and 1385 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) an agreement (Vergleich) can only be challenged in case the parties were mistaken about an essential fact of the agreement, in case of an error of expression or in case of extortion (Wucher). 17. According to Section 58 of the Act on Exercise of Jurisdiction (Jurisdiktionsnorm), in a court case regarding an action for a declaratory judgment that an employment contract is still in force, the value should be set at ten years’ salary of the employee. 18. In general, when a party challenges the fixing of the value of the claim, the court of first instance has to do so in accordance with Article 7 of the Lawyer’s Fees Act (Rechtsanwaltstarifgesetz). This decision is contestable only if it is contrary to mandatory rules. The value of the claim is the basis for the court costs and the lawyer’s fees.