KOSTELKA: City of Vienna demands refund of training expenses after unnoticed pregnancy

TV programme 'Bürgeranwalt' (Citizens' Attorney) of 04 July 2011

Ms N.N. from Bad Blumau concluded with the Viennese Hospital Federation (KAV), represented by the School for General Health and Nursing at the Social and Medical Centre East Donauspital of the City of Vienna, an agreement on taking a training course to become a certified nurse. In this agreement, she undertook to take on three-year employment with the City of Vienna after successfully passing the training course. The young woman was prepared to fulfill her contract after successfully passing the training course and moved into a small official apartment. The fact that her life would take a different course was neither foreseeable nor intended. The young woman is now the mother of a 2 ½-year-old girl and was called upon to pay back about 19,300 euros because she terminated her contract. Ombudsman Kostelka doubts that the Vienna Hospital Federation will be able to assert its claim.

Ms N.N. had negated her pregnancy. On the date of the birth she had been suffering from severe back pains and had gone home from work for that reason. As she had no longer been able to stand the pain, she drove to hospital. The examination there revealed that she was about to give birth. 36 minutes later the baby was born – much to the surprise of the Styrian, who had not yet given any thought to the matter of what was to happen now. Even N.N.’s colleagues at work and family were utterly flabbergasted, as there had not been any signs of an advanced pregnancy.

Ms N.N. remained on maternity leave for two years and finally terminated her contract with the KAV. In view of the completely changed situation, the single mother had decided to live with her mother in Styria so as to be able to look after and bring up her child well there. A daily journey to work of over 150km from Bad Blumau to Vienna does not seem acceptable. Looking after the little daughter alone in Vienna is in contradiction to the child’s wellbeing, as the grandmother has also become an important attachment figure for the child. Ms N.N. explained her situation in a letter to the KAV. The reply was shocking as it contained a demand for the refund of almost 19,300 euros in training costs. When signing the contract, the 18-year-old had not been aware of these consequences.

The KAV rejected the invitation to the programme with the written argument that no publicity was needed and that negotiations with Ms N.N. were ongoing anyway. However, in the preparation for the programme an accounting error had been noticed; the demand was now reduced to about 15,700 euros.

Ombudsman Kostelka criticises especially that no fairness considerations are taking place.

The legal foundation for training as a certified health care nurse is the Federal Act on Health and Nursing Care Professions (GuKG). This law does not contain any stipulations on the defrayment of training expenses.

In principle, according to Supreme Court jurisdiction and prevailing theory, agreements in which the employee undertakes to pay back training costs are permissible. But these agreements may not unacceptably restrict the employees’ right to give notice or be contra bonos mores.

Whereas the KAV informed Ms N.N. that she had no chance of having the demand withdrawn in court and that for this reason there was no point in turning to a lawyer, Ombudsman Kostelka judges the situation differently. He is convinced that Ms N.N. might well win in court and criticises that the City of Vienna is only exercising unauthorised pressure with this information policy. ‘This is not the correct behaviour of a public body towards the citizen’, he adds, announcing that ‘we must continue to talk. The child is there, and Ms N.N. has to look after it. How she is to do that without harm to the daughter next to professional work for the KAV has remained completely unanswered up to now. The only thing that has occurred to the City of Vienna is to send a demand for payment and to threaten legal action.’

Citizens’ attorney Resitarits promises to stick to the case in the hope that with the aid of the ombudsman office the demand on Ms N.N. can be further reduced or even abandoned because the consideration of unforeseen circumstances is just as necessary as the treatment of the size of the demand raised by the KAV against a young woman who has yet to find reentry to working life.