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

Written form not fulfilled in case of termination via WhatsApp

Some collective agreements contain formal requirements for the termination of the employment relationship. Even more frequently, the written form for termination is agreed in the employment contract. In times of e-mail, SMS and WhatsApp, the question arises whether it is sufficient for the written form if the letter of termination is scanned or photographed and transmitted electronically.

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In legal transactions, written form is probably the most frequently encountered formal requirement. It is true that it is by no means prescribed by law for all contracts, agreements or declarations; especially in labour law, most agreements and declarations can also be made orally. The fact that written form is regularly preferred for reasons of legal certainty and for the purposes of proof is shown by the frequency of written form agreements in employment contracts. Especially when it comes to termination, these often contain the requirement to declare the termination in writing.

It is less common that the collective agreement already contains such a provision. For example, section 15 para 2 of the collective agreement for Austrian dental employees contains the following strict provision:

Notice of termination must be given in writing, otherwise it is legally invalid. 

This means that within the scope of application of this collective agreement (i.e. for employees of dentists in Austria) oral termination is invalid

According to the established case law of the Supreme Court, the written form generally requires a handwritten signature under the text. The requirement of written form is intended to ensure that the content of the declaration to be made and the person from whom it emanates can be sufficiently reliably inferred from the document. The formal purpose of the written form of the notice of termination of a party to an employment contract lies essentially in the recipient's need to have the notice letter of the other party to the contract physically in his hands.

In a case recently decided by the Supreme Court (9 ObA 110/15i), the employer first gave notice of termination of employment to his employee by telephone. On the same day, he wrote a letter of termination addressed to the employee, in which he stated, among other things, that the employment relationship was terminated as a result of the termination, subject to a notice period. The termination letter was stamped and signed by the employer. The employer photographed the termination letter and sent the photo of the termination letter to the employee via "WhatsApp" on the same day. The employee received the photographed letter of termination via "WhatsApp" and read it in its entirety, i.e. including the stamp and signature of the defendant, on the same day.

The Supreme Court ruled that the transmission of a photo of the written and signed termination letter did not fulfil the requirement of written form prescribed by the collective agreement and was therefore not to be regarded as a written termination.

The transmission of a scan or a photo with the - possibly even signed - termination letter by e-mail, MMS, WhatApp, Facebook or via other electronic messaging services is therefore not to be regarded as a written termination, unless this was expressly agreed by contract.