The Supreme Court recently dealt with the question of whether the employer can reclaim so-called excess benefits from the employee. Excess benefits are benefits that the employee has wrongfully received through no fault of their own.

In principle, the employee is enriched by an excess benefit, which is why the employer can reclaim the excess benefit from the employee, but only if the employee has not already used the money in good faith.

However, if the employee received the excessive remuneration on the basis of false information, the employer is not only entitled to repayment of the amounts under the law of enrichment, but also to compensation.

In the specific case, which the Supreme Court ruled on in the decision 9 ObA 89/17d, the defendant was employed by the plaintiff as a municipal secretary for around 10 years and was also responsible for his own payroll accounting, among other things. In doing so, the defendant included various allowances in his payroll, knowing that he was not entitled to them.

It was not until several years after the damage had occurred that the employer sued its now retired employee for repayment of the unduly received amounts. The employer only noticed the damage during an inspection several years after it had occurred.

The defendant argued that a reclaim was no longer possible in his case, as the Vorarlberg Municipal Employees Act 2005 was applicable to his employment relationship. According to this law, a reclaim under unjust enrichment law can only be asserted 3 years after it arises. However, he overlooked the fact that the culpable misappropriation of assets also entitles the employer to claims for damages, which only become time-barred within 3 years of knowledge of the damage and the injuring party. The plaintiff was therefore unsuccessful in all instances with his claim for repayment.

CONCLUSIONS:

Certain special regulations may apply under unjust enrichment law for the recovery of excess benefits, according to which recovery is only possible for a certain – short – period of time. However, under compensation law, the general principles of civil law apply, according to which a limitation period only applies within 3 years of knowledge of the damage and the injuring party. Therefore, if culpable conduct on the part of the employee has led to the overpayment, the employer can still reclaim the payment years after the actual inflow of money.