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I would appreciate some advice with respect to my situation.

I was offered a job in Austria (I'm from the UK) back in the summer of 2019. The job was conditional on finishing my Masters Degree in the UK, which I was set to do in September 2019. I was set to start 1st of October 2019. I moved over and began working. However, when there, I was told that I would not be given a contract (and hence paid) until they had confirmation not only of finishing my masters but that my final grade would be a pass (or higher). I was told on the 3rd of October that, when I had this final confirmation of grade, my contract would be backdated to the first of October and I would get pack-pay. I have this in writing in an email from the HR department. I accepted this offer and continued turning up to work, expecting to get back pay.

In December 2019, I got the final confirmation from my masters course (including confirmation that the date of completion was in September, before my start date). The documentation was sent to HR but they have now refused to backdate to October, stating that they only backdate to when they receive the documentation, not, as had previously been stated, to when I was told to start.

I've been working for three months at this institution on the information that I would get back pay for this.

Given that they told me I would get back pay and I worked conditional on that information, am I entitled to it?

Thank you all in advance.

  • 2
    So it is legal tin Australia to not pay someone for work they have done ? – George White Jan 13 at 16:25
  • @GeorgeWhite "So it is legal tin Australia to not pay someone for work they have done ?" Only if it is agreed upon by the parties. Austria's ABGB at § 1152 provides that by default a labor contract shall be treated as one entitling to reasonable compensation (i.e., unless the contract either establishes compensation for labor or that there will be no compensation at all). The OP does not seem to have waived compensation in his contract. I removed my previous comment upon realizing there was an inaccuracy. Sorry for the confusion. – Iñaki Viggers Jan 13 at 23:25
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    "However, when there, I was told that I would not be given a contract" A promise to give a contract under certain conditions is itself a contract. This situation fulfills all the requirements of a contract: mutual promised consideration, meeting of the minds, acceptance, etc. – Acccumulation Jan 14 at 6:35
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    @GeorgeWhite Austria. – user253751 Jan 14 at 10:29
  • thanks for the correction. – George White Jan 14 at 16:48
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Given that they told me I would get back pay and I worked conditional on that information, am I entitled to it?

You are entitled to backpay in accordance with the terms you accepted from HR. The employer's refusal to pay you from October 1st is in violation of Austria's Allgemeines bürgerliches Gesetzbuch at § 860a.

At this point you have fully complied with the conditions on which your continued employment was contingent. From then on, the employer's belatedness in revoking its commitment to backdate your start date to October 1st is not cognizable: Prior to your full compliance with the conditions of academic nature, there was no possible way for you to be aware of the employer's repudiation of its obligations regarding the October-December compensation.

The employer's failure to timely notify you of the unilateral change is especially notorious and hard to justify. Your employment & relocation to Austria suggests that the employer had --and waived-- ample opportunity to inform you that any work you perform prior to addressing the contingent aspect will not be compensated. Even if the employer ventures with a dubious allegation of that sort, it is unlikely to survive § 1152.

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    Could you add some additional information for guidance on how the OP may be able to recoup the unrewarded backpay? Like, should he consult his union, should he contact some sort of official labour rights organization organized by the government or a nonprofit, should he lawyer up? I know it's not exactly what he asked for and I'm not sure if it's entirely appropriate for this stack, but I feel like he shouldn't have to ask this question a second time in the Workplace stack. – Nzall Jan 14 at 8:50
  • @Nzall: that seems like a fairly different question: "What's the legal situation?" and "what's the best course of action?" are sometimes only loosely related. You need more info for the second one such as "do you want to keep your job and have a career at this company?" – Hilmar Jan 14 at 10:37
  • OP should contact the Arbeiterkammer for help with that. – Josef says Reinstate Monica Jan 14 at 12:15
  • @Nzall I am not knowledgeable of Austria's procedural law except that employment disputes involve some sort of administrative remedies or special court (Sondergericht) and provisions in the Arbeits- und Sozialgerichtgesetz. However, the employer might desist from its wrongful conduct if the OP directs the employer's attention to the legal basis of the OP's position without a need to go to court, as has happened elsewhere. – Iñaki Viggers Jan 14 at 13:16
  • What to do really depends on whether the OP intends to continue working for this company long term. If yes, things are complicated as legal actions against your employer (no matter which) are a really bad start. In this case he should try to start with minimal confrontation and increase the severity of measures if needed. If he is already planning to leave the company and just about getting the pay, I would suggest collecting the evidence and consult a lawyer – Manziel Jan 14 at 13:54
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Go to the Arbeiterkammer. It's a institution designed to help employees on such matters.

Call them at Tel. +43 1 501 65 1341 (Mon-Fri 8am-2pm) to arrange an appointment. You may need to speak German or find someone to help you who speaks German. More info here: https://wien.arbeiterkammer.at/ueberuns/kontakt/index.html

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