No discrimination in case of dismissal due to refusal against Covid measures

Created by Mag. Sylvia Unger |
Employment Law for Companies , Civil Law

Employees may not be dismissed on the basis of their ideology. If this nevertheless happens, the dismissal can be challenged in court. According to the case law of the Austrian Supreme Court, the refusal to wear masks at the workplace does not constitute a world view and therefore a dismissal on this basis does not constitute discrimination.

1. background

The dismissal of an employee was challenged in court. The employee based the action on the fact that a dismissal on the grounds of world view constitutes discrimination.

The plaintiff believes that the coronavirus is equally dangerous as the influenza virus. In addition, she argued that the Constitutional Court had already overturned some laws and ordinances related to the coronavirus and that she therefore had the worldview to "comply with constitutional laws".

2 Legal assessment of the OGH (9 ObA 130/21i)

The term "worldview" is closely related to the term "religion". However, it is also a collective term for all ideological, political and similar guiding views of life and the world. The Supreme Court clarifies that these are not scientific systems, but rather interpretive views in the form of personal convictions regarding the basic structure, modality and function of the world as a whole.

According to the trial court, the plaintiff's arguments do not represent her worldview. Rather, the court sees in them merely arguments against the wearing of masks and corona protection. Comparatively, in an older decision, the OGH also did not qualify an employee's critical view of asylum legislation in Austria as his worldview.

Adhering to constitutional laws is fundamentally correct; according to the OGH, this is not a worldview. Criticism of the meaningfulness of the Covid measures also does not fall under the definition of ideology.

3. conclusion

Dismissal does not constitute discrimination on the grounds of worldview if an employee is dismissed for refusing to wear the mandatory mouth-nose protection at work.