A warning has several functions, as shown below. Only when all functions are fulfilled is it a formally lawful warning.
1. Documentation function
The admonished behavior must be described in detail. This means that a third party who has nothing whatsoever to do with the matter can recognize what it is about, in particular what concrete behavior (when, where, to whom) has been committed?) is accused.
Blanket accusations, such as "…the employee has repeatedly been unpunctual at work" or "his work performance is poor" or "he has repeatedly been drunk at work", do not fulfill the documentation function and there is therefore no effective warning.
2. Notice function
It must be clearly stated that the warned behavior is reprimanded as a breach of contract and the employee is advised that he must fulfill his contractual obligations properly in the future.
3. Warning function
It must be clear from the warning that the employee must expect to be dismissed in the event of a repetition.
Only if all three functions are combined in the warning, is it legally called a warning.
Even a letter that is headed in large letters with "warning" does not constitute a genuine warning, unless the warning fulfills all three functions. Consequently, the designation by the employer alone is not important.
If several breaches of duty are alleged in the warning, all allegations must fulfill the documentation function, i.e. the warned behavior must be described precisely in terms of date and time with regard to all cases. If only one accusation does not fulfill the documentation function, or if only one violation of the employment contract was wrongly accused, the entire warning must be removed from the personnel file.
Accusations that do not meet the requirements for a warning, as described above, do not constitute a warning, but at best an "admonition" (or also "reprimand", "warning", "reprimand"). In principle, such a warning does not contain a threat of termination in the event of a repetition. Such warnings are not sufficient to prepare for a termination on grounds of misconduct. Only a genuine warning constitutes the "yellow card" required in principle for the iance of a termination for conduct-related reasons. A mere warning is therefore of no significance under termination law.
Must the warning be in writing?
No, a verbal warning is sufficient. However, the employer must prove in any proceedings for protection against dismissal that the warning complies with the requirements outlined above and contains the three functions. As a rule, this will not succeed, which is why verbal warnings, even if they are formally possible, are regularly considered worthless.
If the employee receives a written warning, he or she should never acknowledge by signing that he or she agrees with the warning or that he or she is in breach of duty. confirm the facts described therein.
Simply confirming receipt of the warning is not problematic.
How long is the employer allowed to take with a warning??
There is no real preclusive period for iing a warning. The 2-week period of § 626 II BGB does not apply to warnings.
The period of time after which the employer may no longer ie a warning due to a past breach of duty depends on the individual case. There are no fixed limits. In principle, the employer can therefore also ie a warning for breaches of duty that occurred a long time ago. If the employer allows too much time to pass, the warning can no longer have a warning function. For example, in an individual case, a warning ied by the employer for the first time almost six months after an identified breach of duty was held to be inadmissible by the courts.
Can the works council participate in a warning??
The works council has neither a right to be heard nor a right of co-determination when a notice of termination is ied.
According to § 84 BetrVG, however, the employee has the option of complaining to the works council if he or she feels that he or she has been treated unfairly as a result of the warning.
The employee has a right to know how the employer deals with this complaint. The employee must not suffer any disadvantages as a result of the complaint (§ 84 III BetrVG).
Does the employer have to hear the employee before iing the warning?
If the employer wants to include the warning in the personnel file, there is a duty to hear the employee in accordance with § 82 I BetrVG. If he does not do so, the employee can demand that the warning be removed from the personnel file.
However, the employer can still refer to this warning in the event of termination for reasons of conduct.
Who may ie a warning?
The employer and all persons who are entitled to give instructions to the employee.
What are the effects of a warning??
An employee who has been employed in a company for more than six months and has more than ten employees within the meaning of Section 23 of the German Unfair Dismissals Act (KSchG) enjoys protection against dismissal under the German Unfair Dismissals Act (KSchG). This means that he can only be dismissed on the grounds of conduct if there is no operational or personal reason for the dismissal -more details here- .
Also for coworkers with special protection against dismissal, as for example work councils, pregnant woman and severely disabled persons, the behavior-conditioned (extraordinary, without notice) notice of dismissal comes to special meaning.
Whenever the employer wishes to terminate the employment relationship for reasons of conduct, it is usually a prerequisite that at least one warning has been ied beforehand.
The protection against dismissal begins to crumble for the employee as soon as he or she has received a justified warning. The warning therefore jeopardizes the legal existence of the employment relationship. In the case of repetition, there is a threat of dismissal for conduct-related reasons.
However, if the employee behaves dutifully in the future, a warning ied shall not have any adverse consequences.
In particular, a dismissal for conduct-related reasons cannot be ied retrospectively due to conduct that has already been warned, without repeated misconduct. The reproach has then already been "used up" for the iance of the warning.
How often must warnings be ied?
The warning is not regulated by law. According to case law, however, as a rule a warning must be ied before a termination for conduct-related reasons is ied and before an extraordinary termination without notice is ied.
No warning is required if the employee's breach of duty is so serious that the employer cannot reasonably be expected to continue the employment relationship even until the end of the notice period. It concerns breaches of duty whose illegality the employee could easily recognize and it is obviously impossible for the employer to accept such behavior. However, the outcome of a successful termination is always a question of the individual case.
In the following cases, the employee may also without a warning be dismissed:
– Assault towards the employer and also towards colleagues; – "Celebrating sick" as a reaction to certain company events; – Theft or embezzlement of company property; – Sexual harassment (with a certain intensity and extent); – Time recording fraud; – Abuse of control equipment; – Serious insults towards superiors and/or work colleagues; – Disclosure of business or company secrets; – "Dissolute" private use of the Internet, – Violation of the non-competition clause; – Serious mobbing behavior.
However, the employer must ie a warning before iing a notice of termination for the following breaches of duty (examples):
– Private e-mail traffic; – Private Internet use; – Private telephone use; – Bullying (iance of a warning may be dispensable in the case of very serious bullying); – Taking up a secondary job; – Late appearance at the workplace; – Late notification of illness; – Late submission of the certificate of incapacity for work.
How many warnings are to be ied?
In principle, a warning is sufficient to require the employee to properly fulfill the contract. However, in the case of only minor misconduct, several warnings are needed, especially before terminating a long-term employee.
The warning and the subsequent breach of duty which is taken as a reason for the termination must be be of the same nature its. Only then there is an already warned misconduct in case of repetition.
The facts of the warning and the facts of the dismissal must therefore be at least on the same level. An employee who insults another and is therefore warned cannot be dismissed for late submission of a certificate of incapacity for work. There is a lack of similarity between the warning and the reason for termination.
Can an employee be given a warning for illness?
No. A warning can only be considered if the behavior is controllable and the employee can influence the behavior complained of. A warning because of illness is therefore impossible.
The situation is different, of course, if the illness is feigned or the employee behaves in a manner contrary to recovery. However, it is up to the employer to prove this.
How can an employee defend himself against a warning letter?
It is important to know that an employee is not obligated to do anything about a warning immediately. There is neither an obligation nor a time limit for an appeal or an objection against a warning. The employee can initially accept a warning without objection and only dispute the warned breach of duty in a later dismissal protection process and attack the warning. However, this approach is not necessarily advisable, as every judge will ask why an employee did not object to the warning in any way.
On the other hand, the employee must not suffer any disadvantages as a result of not initially taking legal action against the warning. For tactical reasons, it may therefore also be advisable for the legality of a warning to be examined only in a later dismissal protection lawsuit.
The employee has three possibilities to defend himself against a warning:
– 1. He can submit a counterstatement to the personnel file. – 2. He can demand that the warning be removed from the personnel file. – 3. He can demand that partial statements in the warning that are inaccurate or, for example, defamatory, be revoked.
The employee can also enforce his rights described above by taking legal action if the employer refuses to comply with his demands without justification.
Who bears the burden of proof?
In a warning process, the employer must present and prove all the conditions for the effectiveness of the warning.
– Employment contract – Pay slips – Company agreements – Notice of termination – Warning – Intended termination agreement – All other relevant documents you have received with the present legal problem.