Double SMS is required
Can I be terminated by SMS?
User question: Can I terminate or be terminated my employment relationship via SMS?
In principle, the termination of an employment relationship in Austria is not tied to any particular form. Verbal, written, but also through conclusive actions are therefore fundamentally permissible and effective. Employment relationships can therefore generally be terminated by both the employer and the employee via SMS.
Provisions in the collective agreement
The only exceptions from this principle are employment relationships for which the employment contract or the applicable collective agreement requires a written declaration of termination. Despite their text form, short messages in this context are not sufficient to meet the formal requirement of being in writing. The constant jurisprudence understands this to be signature, i.e. the handwritten signature of the person giving notice. An e-mail usually does not meet this formal requirement of being in writing either.
Exceptions to apprenticeships
The law provides for another exception to the principle of freedom of form, for example for apprenticeships. According to the law, termination is only possible in writing, which is why termination via SMS - even if the contractual provisions differ - are always inadmissible and therefore ineffective. Therefore, if an apprentice receives an SMS from the teacher stating that the employment or training relationship is terminated, this still continues unchanged.
Message has to be received
In general, it should be noted that the notice of termination must be received. The effectiveness of the termination therefore depends on reaching the other contracting party. While verbal terminations take effect immediately upon pronouncement, written notices of termination generally only become effective upon receipt.
Cancellation notices "travel" at the risk of the declaring party. If cancellation by SMS is possible due to the lack of special formal requirements, the sender bears the risk that the recipient will actually receive this cancellation. In the event of transmission errors or sending to a telephone number that is not up-to-date, the cancellation is deemed not to have taken place.
Burden of proof on the sender
If the recipient claims, for example, that he has never received this SMS, the sender has to prove access in the event of a dispute - which is usually hardly or very difficult to do. In order to avoid such difficulties of proof, termination - regardless of which party - should be given either verbally in front of witnesses (unless written form is required) or by letter confirming access. (Stephan Nitzl, derStandard.at, October 3, 2013)
Stephan Nitzl is a lawyer and head of the labor law practice at DLA Piper Weiss-Tessbach.
In this labor law column, suggestions from users should be addressed on a regular basis. If you have any questions about labor law, you can post them here or email them to [email protected]
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