Warning - effective warning

The warning can be issued both in writing and orally. However, since the content of a warning must regularly be proven in the event of a dispute, it is advisable to issue the warning in writing and also to state it in the Personnel file to be recorded.

Furthermore, the warning must be formulated in a sufficiently specific manner. This means that the content should be formulated in such a way that the employee can recognize what his misconduct under the employment contract was.

The employee must also have received the warning. In the case of a verbal warning only, listening is required. In the case of a written warning, the warning must also have reached the employee. The employer bears the full burden of proof of receipt, which represents a great risk for the employer. However, the employer can demand a receipt from the employee in order to be able to prove receipt of the warning.

In addition, the right to issue a warning must be taken into account. Not only the one who is entitled to issue a Cancellation is entitled to a Warning but also any superior who is authorized to issue instructions. Therefore, warnings are often issued by the personnel department. Thus, when issuing a warning, always make sure that it is signed by the employer personally or by a superior.

In order for the warning to continue to be effective, it must be proportionate. Disproportionality exists if the error could have happened to anyone, i.e. if there is slightest negligence. In many workplaces, errors are partly pre-programmed and therefore do not justify the issuance of the warning. It therefore always depends on the individual case and you have to decide whether the otherwise reliable and committed employee is really inclined to push his limits further and further.

Furthermore, in principle there is no time limit for issuing a warning. It can be issued at any time as soon as a breach of duty has occurred. The employer can also issue a warning for misconduct after a longer period of time. However, the longer the warning has been in place, the less weight it carries. In addition, the issuance of a warning may be forfeited if one year has elapsed since the breach of contractual duty.

Forfeiture occurs when the entitled party is denied the exercise of its right because it has not made use of its right over a longer period of time and has thus given the other party the impression that it can no longer be expected to assert its right in the future. At the latest then it is no longer possible to issue an effective warning.