Employees are obliged to comply with their contractual, collective bargaining and legal obligations. If employees breach these obligations, there are various warning and sanctioning mechanisms which the employer may use, depending on the severity of the breach. These range from a simple warning to termination of employment or dismissal without notice.
Simple warning vs. disciplinary measure
In case of conduct in breach of the employment contract or instructions, employers may admonish employees by means of simple warnings. By issuing a warning, the employer informs the employee that misconduct in breach of contract or instructions will not be accepted and that he/she must behave in accordance with the contract and instructions in the future.
The purpose of the warning is to give the employee an opportunity to correct his/her behaviour without there being an immediate and final sanction. The primary purpose of the simple warning is therefore to avoid a repetition of what the employer considers to be unacceptable behaviour.
In contrast to such simple warnings, disciplinary measures are measures taken by the employer with the objective of maintaining or restoring order in the enterprise. Such measures imply direct adverse consequences for the workers, such as fines or salary cuts. Disciplinary measures are only permissible if there is a legal basis for them. In practice, this is usually a works agreement.
In summary: Disciplinary measures are used to sanction certain behaviour on the part of the employee whereas warnings are meant to caution and admonish.
Requirements for a warning
For a warning to be valid, neither the use of certain words nor the threat of consequences such as dismissal is required. The designation of the warning as such is of no significance, either. It is sufficient if the employee is made aware of the neglect of duties and requested to fulfil his/her duties; this needs to be done in a manner appropriate to the seriousness of the situation.
There is no specific formal requirement. A warning can therefore be issued both orally and in writing. In practice, written warnings with proof of delivery are recommended in order to be able to prove that a warning was given and what its content was.
Warnings as a prerequisite for dismissal on grounds of conduct
If an employer wishes to dismiss an employee without notice, this will require one or more previous warnings having been given to the employee in the context of certain reasons for dismissal. For example, the dismissal of an employee for persistent breach of duty usually requires at least one warning. Persistent breach of duty is defined as either repeated breaches of duty by the employee or breaches so serious that the employer can justifiably conclude that the employee will continue to disobey justified instructions. However, it must be noted here that the employer may refrain from issuing a warning altogether and immediately issue a dismissal if the breach of duty is so serious that a warning would be a pointless formality. It is however not possible to combine the two measures for one and the same breach of duty – i.e. there can only be either dismissal or warning.
The significance of warnings in the event of termination
In case of termination subject to a period of notice, no statement of reasons is required at the time when the notice of termination is given. However, a statement of reasons will at the latest be required in court if the employee challenges the action on grounds of social unacceptability and/or proscribed reasons.
For example, if there is need to prove that the employee him/herself is the reason, it is helpful for the employer to show that previously, warning was given on person-related grounds. This warning may then be presented in the proceedings in which the termination is challenged; thus it is possible to prove that the continued employment of the employee would adversely affect the employer's operations and that the termination is therefore justified.
Summary
A distinction must be drawn between a warning and disciplinary measures. A warning can be helpful in preparation for termination of employment. Warning and dismissal for the same breach committed by the employee are not possible.
Your KWR Employment Law Team will be happy to assist you with these and other questions relating to the termination of employment.