Employee (anonymous) – Court Ruling (Austria, 2020)

An employer (defendant) used a GPS positioning system installed in the company vehicles (which were allowed for private use as well) without a company agreement or the consent of the individual employee (plaintiff). The system was able to transmit GPS data around the clock, to monitor the battery level and to recognize when the ignition was switched on. The defendant tracked the plaintiff's use of his company vehicle during the plaintiff's work and leisure time. Several managers working for the defendant could view the data created by the GPS positioning system at any time via the internet. There was no company agreement on this GPS positioning system, especially since there was no works council in the company. The defendant did not comply with the plaintiff's repeated written and verbal requests to refrain from the GPS tracking, at least in his leisure time. The GPS tracking caused considerable inconvenience for the plaintiff. He was often called by his superior and asked why he had left home so late. Since the plaintiff did not want his private life to be controlled and monitored by the GPS tracking of the company car, he did not drive the company car but went on holiday in another car. Does the tracking of a company vehicle (which an employee is also free to use in his leisure time) by an employer via a GPS positioning system require the employee's consent or a company agreement? Is an employee who has been unlawfully monitored by such GPS positioning system entitled to non-material damages? The Supreme Court upheld the decisions of the lower instances, which awarded the plaintiff compensation for the non-material damage he had suffered as a result, totalling EUR 2 400 (approximately EUR 400 per month of surveillance). With the GPS tracking system, the defendant had introduced a technical measure for the permanent control of its sales staff, which affects human dignity, because it controls the privacy brought into the company by each employee. The use of this tracking system also violated the defendent's duty of care as an employer under § 18 Austrian Employment Act (AngG). Under § 96(1) Z 3 Austrian Labour Constitution Act (ArbVG) and § 10 Austrian Act on the Amendment of Employment Contract Law (AVRAG) this control measure would therefore have required a company agreement or the consent of the plaintiff in an individual contract in order to be admissible. By using the GPS positioning system in the plaintiff's company vehicle during his working hours (and leisure time), the defendant unlawfully and culpably (intentionally) encroached on the plaintiff's private sphere, namely his very personal sphere of life. Since the intensity and extent of the violation also constituted a considerable violation of the plaintiff's private sphere, the plaintiff was entitled to non-material damages under § 1328a Austrian Civil Code (ABGB).