Warning - effective warning
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Warning notice - effective warning notice - the most important criteria
Law firm for labor law in Kerpen, Cologne and Witten
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In everyday working life, not everything always goes as planned. It can happen that employees do not fulfill the obligations imposed on them by their employment contract and thus violate it. Employers have a legal tool at their disposal for such cases, the warning letter, to express their dissatisfaction with regard to the employee's lack of performance or even proactively pave the way for termination.
However, such warnings are not always justified and effective. Therefore, it is important for the employer to know when such a warning is effective and what the most common errors are. Otherwise, there is a risk that the employee will file a lawsuit against this ineffective warning and that the employer will be exposed to a costly and, in the worst case, expensive legal dispute.
The warning: function, preliminary stages and legal consequence
Function, preliminary stages and legal consequences of an effective warning notice
If an employee violates his or her obligations under the employment contract, the employer shall not directly Cancellation but can only first of all reprimand the misconduct, the breach of the contractually agreed services, of the employee by means of such a warning.
The warning is therefore intended to serve an indication, reprimand and warning function. It shows the employee his misconduct, in writing, which is to be refrained from in the future, otherwise in the event of a renewed violation of the work instructions of the employer, labor law Consequences for the employee, warned, threaten.
If one of these functions is missing, it is not a warning in the legal sense. Rather, it could be a warning, a reprimand, an instruction or even collegial advice. These are all precursors to such a warning. However, unlike a warning, these have no legal significance in terms of termination law.
The legal consequence of an effective warning is that the employer can terminate the employment relationship if the employee commits similar violations of his contractually fixed duties in the future or violations comparable to the original reason for the warning.
Reasons for a warning
Reasons for a warning
Common reasons why warnings are often issued include repeated tardiness to work, unexcused absences from work, alcohol and drug use at work, insults to the employer, work colleagues or even customers, and refusal to work or failure to follow work instructions. Basically, behavior in the workplace that can be understood as being of a business-damaging nature.
However, if an employee is often ill, this does not justify a warning. After all, it is not his personal fault that he is temporarily classified as unfit for work in this respect. However, if he or she submits sick notes too late or never, this may well justify a warning, as this must still be verified by a medical certificate.
Requirements for a warning
Requirements of an 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.
Common mistakes when issuing warning letters
If a warning is issued due to a breach of duty under the employment contract, it is precisely because of this breach of contract that the Cancellation be pronounced. The reason for the termination has been exhausted by the warning, which is why a Cancellation is no longer possible. In order to be able to terminate, there must be a renewed violation by the employee.
Another mistake made by employers is to be in a Warning to warn against several misconduct. If, in the event of a dispute, it turns out in court that one of these breaches of duty cannot be proven by the employer, the entire warning is invalid - and in the event of a termination for conduct-related reasons, this is also invalid, as there is no relevant warning.
Employers are therefore strongly advised to issue a single warning depending on the breach of contract and then, if necessary, to issue several individual written warnings to the employee at the same time. However, too frequent warnings can also have a detrimental effect, as they lose their necessary warning function through increased warnings. In this case, it is merely a preliminary stage of the warning.
In addition, the tone of a warning issued must always be factual. If the employer insults the employee in the warning, it is also invalid.
Proceeding against an unjustified warning notice
Procedure against an unjustified warning letter
If the accused conduct is not a breach of duty and the warning is therefore ineffective, the employee may request that the warning be removed from the Personnel file demand. This is because it prevents the employee from developing professionally and thus unreasonably interferes with his personal rights. The employee therefore has a right to revocation and removal of the warning. If the employer refuses, the employee can assert his claim before the labor court and sue for damages.
In the event of an ineffectively issued Warning threatens the corresponding ineffectiveness of any issued Cancellation as well as legal action against the warning and thus a costly legal dispute. It is therefore advisable to have the formulations contained in the warning letter reviewed by a Lawyer to have their effectiveness reviewed in order to ultimately be able to issue effective and legally secure warnings without threatening consequences.