Criticism of Coronavirus Measures Does Not Constitute a Philosophy of Life

An employee shall not be discriminated against, either directly or indirectly, when being dismissed from employment. This is a key employee protection in Austrian law. The characteristics that are protected against discrimination include philosophy of life.

A philosophy of life is primarily understood as the totality of personal values, ideas and perceptions, based on knowledge, tradition, experience and feelings, which concern the interpretation of the world, the role of the individual in it, the view of society and partly, also, the meaning of life. It is thus the fundamental cultural orientation of individuals, groups and cultures.

The words serve as an umbrella term for all religious, ideological, political and similar guiding views of life, and of the world as a whole; as well as for the interpretation of the personal and communal location for the individual understanding of life. Worldviews are therefore not scientific systems, but interpretations in the form of personal convictions of the basic structure, form and function of the world as a whole. Insofar as worldviews strive for completeness, they include views of individuals and the world, values, life and morality.

If there is an objective justification for a legitimate goal in the employment relationship, and the means of achieving this goal are appropriate and necessary, a weighing of interests to be carried out will be in favour of the employer.

The termination of the employment relationship can usually be justified by operational interests (eg, maintaining harmony within the company and/or the reputation of the employer). It would be different, for example, if the employer did not terminate the employment relationship of other employees who were in a comparable position or engaged in comparable behaviour that was not related to any characteristic protected against discrimination.

The Austrian Supreme Court recently dealt with the question of whether a dismissal for non-compliance with measures to contain the COVID-19 virus was discriminatory with regard to an employee's philosophy of life (9 ObA 130/2021i).

The Equal Treatment Act stipulates that no one may be directly or indirectly discriminated against in connection with an employment relationship on the basis of their philosophy of life. If an employee is nevertheless dismissed because of their philosophy of life, they can challenge this dismissal in court in accordance with the Equal Treatment Act.

In the present decision, the Supreme Court clarified that the term philosophy of life is closely related to the term religion. This means a guiding view of the world as a whole and an individual understanding of life. Criticism of laws or ordinances, however, is not covered by the protected legal interest of philosophy of life. In this regard, the Supreme Court also referred to a previous decision, according to which a critical view of asylum legislation and practice is not part of an individual's philosophy of life.

If an employee is dismissed because they are critical of the measures in place to contain the COVID-19 virus and refuses despite repeated requests and threats of consequences to comply with these measures, this does not constitute discrimination on the basis of philosophy of life.

In another court case, a lower court also ruled that criticism of COVID-19 measures does not constitute a philosophy of life. In that court case, the worker refused to wear a FFP-2 mask or mouth-nose protection. The court judged this to be a selective criticism of policy measures, so it was not protected under the philosophy of life term.

An employer has also a duty of care towards its employees. In addition, the employer is obliged, in the interests of protecting other workers, to prescribe and enforce a minimum level of preventive measures in the company in order to comply with the legal and regulatory requirements. If an employee refuses to comply with a measure that is mandatory under the statutory provisions and thereby exposes the employer to administrative penalties, the grounds for dismissal of gross breach of duty is realised.

Depending on the branch of business (eg, medical work or contact with vulnerable people) the employers right to issue instructions is considered to be particularly extensive and the interests of the employer outweigh the interests of the employee.