Mag. Balazs Esztegar LL.M.
Attorney-at-law Vienna

Piaristengasse 41/10
1080 Vienna, Austria
Tel. +43 1 997 4102
Fax +43 1 997 4102-99

Declaratory judgment action dismissed for dismissal following refusal of COVID-19 vaccination

In a labour court case, the employer brought an action for a declaratory judgement in order to clarify the question of whether a dismissal pronounced by him for refusing the COVID-19 vaccination was justified. In this way, the employer wanted to pre-empt the employee's claim. The court of first instance dismissed the claim.

The employee was employed by the employer in 2021. At that time, vaccinations against COVID-19 were already widely available, but a vaccination obligation had not yet been decided by law. Likewise, there was no "lockdown for the unvaccinated" at that time. The employee had not been vaccinated against COVID-19. The employer did not ascertain the employee's vaccination status when the employment relationship was established. Only after a few weeks of employment did it become apparent to her that the employee was refusing the COVID-19 vaccination and would not be vaccinated. For this reason, the employer gave notice of termination in compliance with the notice period.

During the notice period, the employee received a segregation notice. Although she did not have COVID-19 herself, she was considered a K1 person under the contact tracing rule in effect at the time. The employee immediately informed the employer and went into domestic quarantine. The employer reacted to this information by dismissing the employee without notice period.

In order to pre-empt the employee's action, the employer herself brought an action before the Labour Court and sought the following declaration:

It is established with effect between the parties that the employment relationship between the plaintiff and the defendant ended on xx.xx.2021 by justified dismissal.

The employee, who was represented by lawyer Balazs Esztegar LL.M., challenged this action for a declaratory judgement - successfully. The court dismissed the action and declared that the action for a declaratory judgement was legally inadmissible in this case. An action for a declaratory judgment could only seek a declaration of rights or legal relationships. In this context, a legal relationship was to be understood as a specific, legally regulated relationship between persons or between persons and objects, given and concretised by the given facts.

The legal characteristics of factual and legal acts, such as the effectiveness of a dismissal, the justification of a dismissal or even the employer's fault in the employee's premature resignation, are not in themselves amenable to a finding.

In short, whether a dismissal was justified or not was not amenable to a declaratory action.

In addition, the court nevertheless dealt with the question of whether dismissal was justified because of the refusal of the COVID-19 vaccination and came to the conclusion that the employee had not committed any misconduct that would have made it unreasonable to maintain the employment relationship, which was already at the stage of termination at that time, until the expiry of the notice period. The dismissal was therefore not justified in terms of content.