1. Facts of the case
The employer (plaintiff) and employee (defendant) concluded an employment contract which contained general provisions on the reimbursement of training costs. Subsequently, the employee signed a second declaration submitted to him by the employer, which further specified the training costs agreement. Among other things, it included the employee's obligation to repay all training costs if the employment relationship was terminated within 36 months of the end of an employer-financed training programme. The employer did not sign the agreement.
After the employee terminated the employment relationship by giving notice, the Supreme Court (OGH) had to judge whether the declaration signed by the employee fulfilled the written form requirement of § 2d section 2 AVRAG and was therefore valid (link to the decision).
2. Legal opinion of the Surpreme Court
A training cost reimbursement agreement must be concluded in writing pursuant to § 2d section 2 AVRAG. § 886 ABGB (Austrian Civil Code) defines ‘written form’ as ‘signature’, meaning that the handwritten signature of the contracting parties is necessary for validity.
From the wording of § 2d AVRAG, the Supreme Court concludes that the legislator assumed that the agreement must be signed by the employee and employer.
According to the Supreme Court, the written form requirement of § 2d section 2 AVRAG is a protective provision in favour of the employee. The purpose of the provision is also transparency - the employee should be able to understand what they are agreeing to in order to correctly assess the financial implications.
In certain circumstances, the written form requirement can be reduced to mere text form. In this case, no signature of the contracting parties is required. However, according to the Supreme Court, there is no basis for such a restriction of the written form in this case. The agreement is a two-sided binding document - the signature creates rights and obligations on both sides. Therefore, the signature of both parties is required.
It was not possible for the employer to refer to the employment contract signed by both parties, which regulated the framework conditions for the reimbursement of training costs, because it lacked the essential contractual points of a repayment agreement.
3. Conclusion
If the employer has not signed the agreement on the repayment of training costs, the written form requirement is not fulfilled and the agreement is legally invalid.