Reimbursement of training costs if exam not passed? (Supreme Court 11.01.2024, 8 ObA 74/23z)

Created by Mag. Sylvia Unger |
Employment Law for Companies

1. Introduction

In the decision 8 ObA 74/23z, the Supreme Court dealt with the question of whether the training costs of an employee paid by the employer can be reclaimed even if the employee did not successfully complete the training due to failed examinations (link).


2. Facts of the case

The employee (=defendant) had agreed with his employer (=plaintiff) that he would be employed as a train driver in the future and would therefore receive the necessary training, which was financed by the employer. This was regulated in the employment contract. Among other things, the contract also contained provisions on premature termination of the training and the consequences if the employee terminates the employment relationship before three years have passed since successfully completing the training. The agreement did not specify what would happen if the employee failed the final examination.

The employee successfully completed some modules and examinations but failed one examination four times. As a result, the employer did not want to allow the employee to take the exam again. Consequently, the employee could not be deployed as a train driver, which is why the employer offered him a job as a shunter. However, the employee rejected this offer and then terminated the employment relationship. 

The employer then claimed partial reimbursement of the training costs, as the employee had gained specialist knowledge that he could now use with other employers. The court of first instance upheld the claim, the court of appeal dismissed the claim. The employer then turned to the Supreme Court.


3. Legal basis

The reimbursement of training costs is regulated in § 2d AVRAG (Arbeitsvertragsrechts-Anpassungsgesetz). 

According to this, training costs are deemed to have been incurred if the training has been successfully completed and the employee has acquired specialist theoretical and practical knowledge which he/she can also apply with other employers. The conditions must be fulfilled for the employer to be entitled to a reimbursement. A written agreement is also required. 

What happens if the training is discontinued or not completed is not regulated by law.


4. Legal opinion of the Supreme Court

The legal question was: What happens if partial examinations of a course are passed but the course as a whole is not completed? 

In the absence of a provision in the employment contract in this case, the requirements of § 2d Section 2 AVRAG were not met, meaning that reimbursement of costs was denied. Furthermore, the Supreme Court emphasized that the employer cannot invoke the contractual provision according to which the employee is obliged to pay compensation if he terminates the employment relationship within three years of completing the training measure because the time limit had never begun to run due to the training not being completed. 

The Supreme Court did not address whether partial reimbursement of costs is possible.


5. Conclusion

The agreement between employer and employee on the reimbursement of training costs should be drafted precisely and also cover scenarios that may lead to the unsuccessful completion of training. If there is no contractual provision for such a situation, the employer has no right to a reimbursement of training costs.