Änderungskündigung (termination with an offer of altered terms)

Scope of application

An Änderungskündigung is used in the following situations:

• reduction of salaries above the collectively agreed level
• change of a contractually agreed place of work or area of responsibility, where this is not covered by the employer's right to give instructions
• changes to the agreed working time or to a contractual arrangement on working from home
• adjustment of the service contracts of senior executives and managing directors, for example where the remuneration structure changes

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Legal basis

The Änderungskündigung is based on the following legal sources:

• §§ 1159 et seq ABGB: notice periods and termination dates for the service relationships covered by them
• § 20 AngG: notice periods and termination dates for salaried employees
• §§ 36 and 105 ArbVG: scope of application, involvement of the works council and possible challenge to the termination
• Supreme Court (OGH) case law on its permissibility and on the two forms of conditional Änderungskündigung

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Deadlines

The following periods must be observed for an Änderungskündigung:

• The applicable notice periods and termination dates must be observed. Where the termination is subject to a condition precedent, the notice period only begins once it is certain that the offer has not been accepted.
• A clear period for acceptance should be set for the offer of changed terms. The offer and the termination must be unambiguously linked to one another.

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Rights and obligations

Rights:

Employees have the following rights in the case of an Änderungskündigung:

• the right to accept or reject the changes offered
• the right to challenge in court a termination that has taken effect, where the statutory requirements are met
• entitlement to the existing contractual terms until they are validly changed or until the employment relationship ends

Obligations of the employer:

• compliance with the applicable notice periods and termination dates
• notifying the works council before giving notice, where § 105 ArbVG applies; consultation at its request
• unambiguous wording of the new terms of employment and of their link to the termination; written form is advisable for evidentiary reasons

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Common mistakes

The following mistakes frequently occur with an Änderungskündigung:

1. An unconditional termination is declared and a later offer of changed terms is wrongly treated as a retroactive Änderungskündigung.
2. The new terms or the period for acceptance remain unclear – leaving it doubtful what the employee is being asked to decide.
3. The competent works council is not notified in good time, or notice is given before its period for comment has expired.
4. The requirements for a challenge on the ground of social unjustifiability, or any special protection against termination, are not checked in advance.

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Recommended steps

The following steps are recommended for a legally sound Änderungskündigung:

1. Coordinate the termination and the offer of changed terms unambiguously and, where possible, communicate them at the same time.
2. Record the new terms, the date from which they apply and the period for acceptance clearly and in a verifiable form.
3. Where § 105 ArbVG applies, notify the works council in advance and observe its one-week period for comment.
4. Check notice periods, mandatory minimum entitlements and possible rights of challenge or special protection against termination.