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7 urban myths of employment law

In dieser Folge unseres Wolf Theiss Arbeitsrecht-Podcasts nehmen Ralf Peschek und Isabel Firneis sieben Mythen aus der Arbeitswelt unter die Lupe: von Fragen im Vorstellungsgespräch über private E-Mails am Arbeitsplatz bis hin zur Kündigung des Arbeitsverhältnisses.

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In this episode Ralf Peschek and Isabel Firneis examine seven urban myths from the world of work: from illegal job interview questions and the forbidden usage of private emails at work to circumstances of termination of employment.

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1. Employers cannot ask certain questions in a job interview

Although employers must not ask certain questions e.g. relating to the sexual orientation or if an applicant is pregnant, in practice it is very difficult for applicants to enforce their rights. If applicants do not answer such “forbidden” questions, they will most likely not get the job. Therefore, in this context applicants – at least in most cases – can lie to the extent that is appropriate for the respective situation without facing any sanctions for giving a false answer.  

2. It is ok to check private emails during working hours

In principle, this is not correct. The basic rule is that an employee is not allowed to do anything private during working hours. This includes writing private e-mails or surfing the internet. However, employers are free to introduce specific rules or to allow these activities within certain limits. So employees need to know the explicit or tacit rules on this subject. Employers can also establish that checking internet for private purposes cannot be done on the company’s devices. There are, of course, certain exceptions. For example, the need to find a doctor urgently or organise care for a sick child.

3. Employment cannot be terminated during a sick leave

This is not true. In fact, an employee can be dismissed while on a sick leave. However, giving notice of termination while the employee is on sick leave can lead to practical difficulties, as the employee must become aware of the notice of termination. This can be difficult, if the employer is not aware of the exact location of the employee e.g. because the employee is in hospital or at a health resort. However, if no specific form for the notice of termination has been agreed upon or is provided for by law or CBA, it is possible to terminate the employment relationship verbally e.g. over the phone.

4. An employee over 50 years old cannot be dismissed

This is not true. In Austria, a dismissal in itself does not have to be justified, unless there is a special protection against dismissal, for example, for pregnant women, disabled people, and members of the works councils. There is indeed a general protection against dismissal which applies regardless of the employee’s age. This general protection applies if the employee can prove that she or he has poor job prospects and either stays unemployed for an unreasonably long period of time or only finds a job that is paid significantly less. Of course, age plays a role here, but only indirectly, as older people typically have more problems in the labour market. In such situations, the employer must justify the termination by personal or business reasons, but employees over 50 years are certainly not exempt from being terminated. Of course though, direct age discrimination would be unlawful.

5. A notice of termination must be given by a registered letter

This is not true. A notice of termination is a declaration of intent that needs to be received by the employee. However, Austrian labour law does not stipulate in which exact form notice of termination must be given. Some employment contracts, CBAs or specific laws include a specific formal requirement, but an obligation to provide a notice of termination by registered letter is rare. More common is the requirement of a written notice, which means either signed by hand or with a secure electronic signature.

6. In the event of personal misconduct, a warning should be given first

This is incorrect. One should distinguish between termination with a notice period and a premature termination for a reason. In the event of termination with a notice period, a warning will not be considered as a prerequisite. In some cases of a premature termination for a reason, it is advantageous or even required that the employee is made aware of his or her misconduct before the dismissal can be announced. However, it is an exception and not a rule. In addition, in some cases the court ruled that if the misconduct is so serious that the warning is pointless, the warning does not have to be issued.

7. Non-compete clause is not worth the paper it is written on

This is wrong. The case law and practice show quite clearly that non-compete clauses in employment contracts are enforceable. However, there is a relatively complex legal mechanism that limits enforceability, including a balance of interest test and strict impediments for enforcement, as the non-compete clause should never exceed one year, and an employee’s minimum income threshold. The balance of interest test means that the employee would have to prove that there is an unreasonable restriction of his or her advancement resulting from the non-compete clause, and the employer would have to prove his/her interest in enforcing the competition in the same way. In practice, the outcome of a court case is often influenced by the employer’s ability to prove the material violation of its interests.