In everyday work life, conflicts can quickly arise between the employer and the employees. As an employer, you want to bring out the best in your company. Employee misconduct can quickly have far-reaching consequences. Therefore, employers have the right and also the duty to warn employees in case of behavior contrary to the terms of the contract before issuing a notice of termination.
Why issue a warning at all?
A warning is a important prerequisite For you to be able to terminate an employee for behavioral reasons in the first place. As a rule, this is only possible if you have previously warned the employee.
Thereby the warning has Two central functions: the warning and the documentation function. First and foremost, the warning informs the employee that he or she has acted in breach of contract and that you, as the employer, do not want to tolerate the behavior any longer. Secondly, a warning also documents that you have given the employee a chance to change his or her behavior. In the event of a repeat incident of the same or at least similar conduct in breach of contract, it may then be possible to issue a written warning. a behavior-related dismissal can be pronounced.
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How must the warning be structured?
In order to issue an effective warning, you as an employer must observe a number of points:
Essentially, a warning must contain three points:
- Naming the breach of duty: It is important that you name the breach of duty of the employee as concretely as possible – with Time and date. In doing so, you should describe the facts of the case exactly. A blanket statement that the employee is "repeatedly late" is not sufficient. The more precisely you name the behavior of the employee that is contrary to the contract, the more legally secure your warning is. It is also best to refrain from directly combining several breaches of duty in one warning.If it then turns out that one of the named behaviors was not allowed to be warned at all, the whole warning is invalid directly the whole warning is ineffective. Therefore, you should ideally formulate a separate warning for each breach of duty.
- Request: The warning does not have to explicit reference warning that you, as the employer, will not tolerate the behavior in violation of the contract and demand that it does not happen again in the future.
- Threat of termination: Lastly, the warning must also contain an explicit announcement that you will terminate the Terminate employment relationship unilaterally If the employee continues to behave in a manner contrary to the terms of the contract, he or she may be dismissed.
It is particularly important that all three named points are included in the warning letter. If even a single aspect is missing, the warning is no longer a warning, but merely a warning a warning. A warning but is not sufficient, in order to justify a termination in the end. Therefore, make sure that you mention all three points so that the warning is formally legal.
Form and deadlines
When issuing a written warning, you must not adhere to any particular form. Theoretically, a warning can also be issued verbally. However, it makes sense to send a warning to the employee Preferably in writing to be issued. The content of a warning is especially important for a possible dismissal. In the case of a verbal warning, however, it is difficult to comprehend the complete content later on. For documentation reasons alone, it is therefore advisable to record a warning in writing.
You are also not obligated to hear the employee before the warning. In most cases, however, a hearing can be useful in order to better understand the exact facts of the case and to hear the employee’s point of view before issuing a warning.
You also do not have to observe any special deadlines when issuing a warning letter. However, it makes sense to issue a warning as soon as possible after the employee’s behavior contrary to the contract has become known. If you wait too long with the warning, doubts about the seriousness of the warning may arise.
Can I terminate already after a warning?
In principle, you cannot terminate someone for the same incident for which you have warned them. With the warning, the incident is quasi "spent". The background to this is that a warning to the employee is a second chance should concede. However, if the behavior in violation of the contract occurs again, you may be able to terminate the employment in many cases.
They should pay attention to how much time has passed between the first warning and the renewed misconduct. If, after the first warning for tardiness, an employee is late again only after several years, the warning may be have lost its warning effect. This means that you would first have to warn the employee again, as termination in such a case would be disproportionate.
In cases where a minor misconduct it can also be more proportionate if you several warnings before you terminate the employee – z.B. if a person is only a few minutes late for work on several occasions. However, they should also Not too many warnings be pronounced until a dismissal takes place, since even then the warning can lose its warning effect. How many warnings make sense always depends on the specific individual case.
For what reasons may I issue a warning?
Basically, you can issue a warning for any misconduct by the employee that is in breach of the contract. However, you should bear in mind that a warning cannot and should not be issued for every little thing.
Following we have once some Reasons listed, for which a warning can be issued:
- Refusal to work in the form of low performance or outright denial
- Non-compliance with work instructions z.B. Errors as a result of failure to follow instructions, being late, overstaying breaks, unauthorized private use of the telephone or Internet
- Insult of colleagues, the employer or the customers
- Late submission of a certificate of incapacity for work and late sick leave
When may I also terminate without a warning?
In some cases, the misconduct of the employee can but be so severe, that the employer not to be expected is to continue to adhere to the employment relationship. The relationship of trust may z.B. have been disturbed to such an extent that the employer no longer needs to issue a warning, but can directly issue an extraordinary dismissal. There must be an important reason for this – in the form of the misconduct by the employee – and extraordinary termination must appear to be proportionate.
In the case of a Theft it often depends on the circumstances of the individual case, z.B. the value of the stolen goods and the length of time the employee was employed by you without misconduct.
Example: In the "Emmely" case, for example, it has been decided that there is no need for a Theft of extremely low value – it concerned here the redemption of deposit coupons i.H.v. 1,30 € – not enough to give extraordinary notice to the lady. She had previously worked for the company for many years without any misconduct and the court saw the redemption of the deposit receipts as a one-time slip-up. However, if these points do not apply, a warning may be waived. You could then also terminate the employee extraordinarily.
The Committing a criminal offense, that comes into contact with the work activity, z.B. a Bodily injury against the employer, the colleague or customer, leads in principle always to the fact that a warning can take place. As a rule, however, you can also give extraordinary notice in such a case without first issuing a warning.
We advise you
In principle, there are therefore Various reasons for a warning. With the question whether warning can be given or if necessary. Even if an extraordinary termination is possible, it always depends on the circumstances of the individual case. As an employer, you must therefore weigh up all the details and precisely assess the situation. We will be happy to support you in the evaluation of a situation under employment law.
The team of experts from the employment law department will be happy to answer your questions.
Call us at 0221 / 951 563 0 (consultation nationwide) to.
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