Employee v. Employer; Austrian Supreme Court (Oberster Gerichtshof); decision dated May 26, 2014– 8 ObA 55/13s

According to the court's decision, the employer bears the burden of proof for the grounds for termination and dismissal asserted by the employer. If the employer bases termination on the possibility that the employee falsely accused her superior of sexual harassment, the employer must prove that the employee knowingly made false accusations, thus providing a valid reason for termination.

Facts of the Case

Section 382b and Section 382e Execution Order (Exekutionsordnung) entered into force on July 1, 2021. According to this provision, the person at risk can apply to the court for a temporary injunction to enforce a prohibition on entering the home for more than two weeks.

Section 38a Security Police Act (Sicherheitspolizeigesetz), which entered into force on September 1, 2021, states that in the event of (imminent) domestic violence, the police can order the person posing the danger to leave the apartment/house where the person at risk resides (removal order) and prohibit them from returning for two weeks (ban on entry). The assessment of the danger, and therefore the decision whether to issue a removal order and/or impose a ban on entry, is the sole responsibility of the police.

Section 49 of the Austrian Marriage Act (Ehegesetz), Divorce due to fault (marital misconduct), entered into force on January 1, 2000.

Section 49 lists marital misconduct as grounds for divorce. According to this, a spouse can demand a divorce if the other has culpably caused a deep breakdown of the marriage through serious marital misconduct or dishonorable, immoral conduct, making the restoration of cohabitation unreasonable. Serious misconduct applies, for example, if one spouse has used physical violence or committed adultery.

Section 41 of the Austrian Civil Status Act (Personenstandsgesetz), entered into force on May 25, 2018, allows for a legal gender change. This has been possible since 1983 and is carried out under Section 41 of the Civil Status Act. According to the latter, the civil status authority must amend a certificate if it has become incorrect after registration.

Section 44 of the Austrian Civil Code (Allgemeine Bürgerliches Gesetzbuch – ABGB), Concept of Marriage – entered into force on January 1, 2019. 

Section 44 defines the concept of marriage in Austria. While the provision initially stated that marriage is entered into by two persons of different sexes, it was amended on January 01, 2019. The requirement that only two persons of different sexes could marry was removed. Same-sex marriage was thus introduced.

Section 207 of the Austrian Criminal Code (Strafgesetzbuch – StGB), on sexual abuse of minors, entered into force on August 1, 2013. 

Section 207 regulates any form of sexual abuse of minors that does not already fall under Section 206 of the Austrian Criminal Code.

Section 206 of the Austrian Criminal Code (Strafgesetzbuch - StGB), on severe sexual abuse of minors - entered into force on August 1, 2013

Section 206 criminalizes the serious sexual abuse of minors. According to this provision, anyone who engages in sexual intercourse with a minor is punished with one to ten years of imprisonment. Likewise, anyone who induces a minor to tolerate or perform a sexual act with a third party or to perform a sexual act on themselves is also punished.

Section 107a of the Austrian Criminal Code (Strafgesetzbuch - StGB) on stalking and unwanted contact - entered into force on January 1, 2020

Section 107a regulates the criminal liability of stalking. According to the provision, anyone who persistently and unlawfully persecutes a person is punished with a prison sentence of one year or a monetary fine. Such unlawful, persistent persecution occurs if the perpetrator's behavior is likely to disrupt the victim's way of life.

Section 104a of the Austrian Criminal Code (Strafgesetzbuch - StGB) Human Trafficking – entered into force on January 1, 2016

Section 104a of the Austrian Criminal Code defines human trafficking as inter alia, the recruitment, transport, transfer, or harboring of persons for the purpose of exploitation through the use of improper means.