Does an employee under a fixed-term employment relationship have to take his/her vacation during an ordered leave of absence?


The plaintiff was in a fixed-term employment relationship with the defendant from 01.05.2019 until 30.04.2020. She was released by the defendant on 04.12.2019 for the remaining period of employment. The plaintiff rejected an agreement offered to her by the defendant regarding the utilization of her remaining vacation and subsequently sued the defendant for payment of 14 days of vacation compensation.


The first and second instances upheld the claim. The Supreme Court (Oberster Gerichtshof, OGH) rejected the extraordinary appeal filed by the defendant.

In its reasoning, the Supreme Court stated that, in principle, there was no obligation on the part of the employee to use up vacation during a longer notice period. Only if the failure to conclude a vacation agreement would violate the employee’s duty of loyalty or if such failure would be an abuse of rights, would there be an obligation to use up the vacation time.

The question that therefore arises is when there is an abuse of rights. In the opinion of the OGH, this is a legal question that must be clarified according to the circumstances of the individual case. For example, the notice period, the employee’s behavior during the notice period, the number of vacation days, the employee’s vacation behavior in the past, or the employee’s opportunity for recuperation must be included in the examination. The requirements of the business must also be considered. According to the OGH, it is not sufficient for the assumption of an abuse of rights that the consumption of the vacation would be reasonable, taking into account the season in which the notice period falls.

In its decision, the OGH agreed with the lower court, which did not recognize any abuse of rights on the part of the plaintiff. As a result, the plaintiff was not obligated to consume the vacation time, since she had already been on maternity leave for almost five months, still had 14 days of remaining vacation time available, had a school-age child that she cared for during maternity leave, and was subject to the first "lockdown" during the time off work, which severely restricted any vacation time.

(Decision OGH 9 ObA 21/21k, 24.03.2021)

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