In principle, an agreement must be concluded between the employer and the employee for vacation to be consumed. In doing so, the requirements of the business and the employee's ability to recuperate must be taken into account. An employment contract clause con-cerning the obligatory consumption of the remaining vacation entitlement during the notice period is generally invalid. This also applies if the employee is released from work.

If no vacation agreement is concluded and the vacation is not consumed up, the employee (only) runs the risk that the vacation entitlement becomes time-barred two years after the end of the vacation year in which the vacation entitlement arose (Article 4 (5) UrlG).

The exception to the principle that there is no obligation to use up a remaining leave entitlement is in the case of abuse of rights or breach of the employee's fiduciary duties (RIS-Justiz RS0120368).

Abuse of rights (harassment) exists if the intention to harm forms the sole reason for exercising the right or if there is a gross disproportion between the interests pursued by the person acting and the impaired interests of the other person. If the disadvantaged interests of the employer clearly outweigh the disadvantaged interests of the employee in a constellation not regulated by law due to the special features of the case, an abuse of rights on the part of the employee can be concluded if he is not prepared to consume his remaining leave during a leave of absence or the notice period due to a lack of willingness. Whether an abuse of rights exists must always be examined according to the circumstances of the individual case. In particular, the duration of the notice period or leave of absence, the number of vacation days, the behavior of the employee during the notice period as well as the employee's possibility of recuperation and the requirements of the com-pany must be taken into account. 

The Supreme Court (OGH) most recently dealt with a case in which an employee who was in a fixed-term employment relationship was released from duty from December 4, 2019, to April 30, 2020 (the end of the employment relationship) (OGH 243.2021, 9 ObA 21/21k). She refused to consume up her 14-day remaining vacation during the leave of absence. The employee had a school-age child to be cared for during the leave of absence.

The Supreme Court ruled that the employee's behavior was not in violation of the law and justified this, among other things, with the known massively restricted vacation arrangement during the first lockdown. It is noteworthy that the first lockdown did not occur until March 16, 2020, and that the vacation arrangements in the three months prior to that were by no means massively restricted. Furthermore, there are doctrinal opinions according to which the rescission of a vacation agreement due to the COVID 19 pandemic and the associated restriction of the vacation arrangement is not possible, as there is no sufficiently important reason for the rescission. The factor cited by the Supreme Court in its reasoning for the decision, namely that the employee had to care for a child who was required to attend school during the leave of absence, is not entirely convincing, as the use of leave is not a factor that precludes childcare.

The decision of the OGH therefore lacks some consistency. It remains to be seen whether the Supreme Court will continue to set such a high standard for determining whether there has been an abuse of rights or a breach of fiduciary duty. In view of the current sharp decline in the number of cases, we can only hope that the Supreme Court will soon no longer have to deal with questions arising from the COVID 19 pandemic.