22. May 17

Terminating employment relationship and prior formal warnings

Formal written warnings play an important role in the field of employment law, with one often being a prerequisite to the employer effectively terminating an employment relationship.

Generally speaking, a prior formal warning is necessary if the reason cited for terminating the employment relationship relates to the conduct of the employee in question, i.e. in cases of dismissal on grounds of conduct. Notwithstanding this, GRP Rainer Rechtsanwälte advises that a formal written warning needs to meet certain criteria if it is to be judged a formal warning from a legal perspective. Merely reprimanding the employee is not sufficient for this purpose.

A formal warning needs to explicitly refer to the employee’s misconduct. Generalized statements that the employee is in breach of his obligations as laid out in the employment contract are not enough; the conduct that is the subject of the formal warning needs to be described in detail. If, for instance, the employee frequently turned up to work late, the employer must be able to reference this misconduct including the relevant dates and times. The employer must also clearly admonish the employee’s conduct as a violation of the employment contract as well as make it clear that this behaviour will not continue to be tolerated and that dismissal is possible if the employee fails to change his behaviour going forward. The formal warning must therefore serve as notice of the misconduct and at the same time as a warning to the employee of the potential consequences under employment law.

Furthermore, employers ought to realize that waiving the option of issuing a formal written warning in relation to misconduct may be interpreted as tacit consent to this behaviour and thus as an amendment to the employment contract.

A formal warning is supposed to give the employee the opportunity to change his behaviour and not put the employment relationship at risk. That being said, the employer’s patience need not be endless, it not being compelled to issue repeated formal warnings before finally issuing notice of dismissal on grounds of conduct. It ought to be noted, however, that the reason cited for dismissal needs to match that cited in the formal warning. Otherwise, the formal warning is not relevant.

In cases involving compulsory redundancy or dismissal on grounds of personal capability, a prior formal warning is typically not necessary due to the fact that there is no misconduct on the part of the employee here.

Lawyers who are experienced in the field of employment law can advise employers on matters pertaining to formal warnings, dismissal as well as in relation to other legal issues.

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