Decision of OGH: After maternity leave no entitlement to the same job

From purchase back to in-store selling.

An employee who returned to a company after maternity leave should switch back from the purchasing department to in-store selling – she sued, but the lawsuit has been rejected by the Supreme Court.

Different job after maternity leave
The employer hired the plaintiff as a salesperson, as also stated in the employment contract. She then worked in this position. However, the contract included the possibility for the employer to assign the employee a different position. She indeed was then transferred to the office, where she handled purchasing affairs for the company's online shop. When the employee returned after maternity leave and made use of parental part-time, she was informed that due to cost-cutting measures she would have to return to the store as a salesperson. This transfer order led to the lawsuit, which has been rejected by previous instances. This decision has been confirmed by the Austrian Supreme Court (OGH).

Transfer order covered by employment contract
After her return from maternity leave, the employer has to continue employing the employee according to the contractually agreed and actually performed job. However, this work does not have to be identical to the previous work. When maternity leave is claimed, the employment contract is only being changed in terms of work duties and remuneration requirements. The decisive factor is whether the transfer order is covered by the employment contract or results from agreed composition reservations. To be treated separately from this is the question of whether there is a conclusive change in the contractual performance due to the use of the employee in a job other than that originally agreed. According to the OGH this is not the case.

A transcript of the decision can be found at the Ris (in German).

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