Warning (German labor law)

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Labor law warning (symbol photo)

With a warning in labor law, an employer complains about certain misconduct by an employee that is contrary to the employment contract and at the same time threatens negative legal consequences in the event of repetition .

General

The warning is one of the disciplinary measures under private law that are available to an employer if an employee violates the work obligation , work instructions , service instructions or the works regulations . Graduated from the weakest measure of hearing there is instruction , reproof , admonition , warning , THE SERVICE reference , fine , withdrawal of voluntary social services , excluding voluntary benefits ( bonus ), reduction of the remuneration ( bonuses ), dislocation , demotion ( Betriebsbußen ) and as the most severe form of disciplinary action the warning. The employer must select the disciplinary measure in each individual case according to the severity of the misconduct, so that not every minor misconduct by the employee can be punished with a warning immediately.

content

Warnings include information, complaint, warning, evidence preservation and documentation functions:

  • Notice function / complaint function : The complained of misconduct must be presented to the employee in a sufficiently clearly recognizable manner. The warning must be based on facts ; this requires a precise description of the alleged breaches of duty and their comparison with the ideal state provided for in the employment contract.
  • Warning function : It must contain the information that in the event of repetition, the content and continued existence of the employment relationship is endangered and a behavior-related termination on the part of the employer can be expected. In order to be able to adequately fulfill its warning function, the warning must be clearly formulated. The employer must, under threat of consequences under labor law such as dismissal, demand that the employee properly perform his contractually owed services.
  • Proof backup - and documentation function : By a warning in writing the misconduct can be documented in writing to the personnel file be taken. If legal disputes arise , the written warning before the labor court serves as evidence . By adding the warning to the personnel file, the employee's misconduct is also documented for the future.

In order for a warning to be issued, the above requirements must be met. Only then can it develop its effect under labor law and, in the event of a renewed breach of duty by the employee, lead to an ordinary dismissal for behavioral reasons.

Legal issues

The warning is a legal term according to which the termination of a continuing obligation (such as the employment contract ) in accordance with Section 314 (2) of the German Civil Code ( BGB) for an important reason in the event of a breach of contract is only permitted after a deadline set for remedial action has expired without success or after an unsuccessful warning. The warning is not a design right , it is also not a declaration of intent in the legal sense, but merely the exercise of a contractual right to complain. The principles of warning have been further developed over the years by the case law of the Federal Labor Court (BAG).

General

Since June 1967, the BAG has held warnings for the exercise of an employment contract creditor right (individual contractual right to complain), the legal basis of which can be found in Section 326 (1) BGB. If the employee does not perform according to Section 275 (1) to (3) BGB ( impossibility ), his or her claim to the consideration from the employer ( remuneration ) no longer applies .

shape

The warning may also be given orally by the disciplinary superior, but as a rule the written form is preferred because of the preservation of evidence and documentation . The written form enables the warning to be attached to the personnel file. Is warning entitled who is authorized due to its task, instructions terms of work , working to issue and manner of work to be performed, so one issue instructions and management powers exercised independently. As a rule, this will be the disciplinary superior.

Works council / staff council

The works council / staff council has no participation rights when issuing warnings. The Abgemahnt worker to the works council in accordance with § § 84 para. 1 and § 85 para. 1 WCA complain . If the works council considers the complaint to be justified, it can request that the employer remedy the complaint in accordance with Section 85 (1) BetrVG. The employer must inform the works council of his approach. The employee also has the right to reply to a warning.

Deadline

There is no deadline that obliges the employer to issue a warning within a certain time, but the warning must be issued immediately after the misconduct, otherwise the right to a warning is subject to forfeiture . After about two months, the employee can trust that his misconduct has not given rise to any complaints. Because a warning is still possible after one month.

Warning reasons

The following misconduct by the employee can lead to a warning:

  • If the work performance is too low ( work volume , work intensity ) or the work quality is too poor, then there are underperformances :
    • Quantitative underperformance ( poor performance ) of the employee based on breaches of duty may be suitable to justify an ordinary termination for behavior-related reasons. According to this, the employee is not permitted to unilaterally determine the relationship between performance and consideration at his own discretion. According to the judgment, this ratio is severely impaired if the average performance is undercut by well over 1/3 in the long term.
    • Qualitative underperformance : If an employee causes an error rate between 4.01 ‰ and 5.44 ‰ and the average error rate of 209 employees is only 1.34 ‰, a qualitative underperformance can be assumed. The responsibility for repeatedly delivered Committee or the failure to comply with legal or operational provisions at work is a qualitative underperformance.
  • If the working hours are significantly undercut, a warning is justified. In this case, a working week of 38 hours had to be observed; Over a period of several weeks, the employee was only present at the company for between two and 23 hours. Regardless of the working hours, she was not prepared to offer her work in accordance with the contract. According to the BAG, this already constitutes a serious breach of their contractual obligations. For tardiness repeated non-compliance is one of starting work, break rules or working end. Also, lack of sick leave and the late or absent submission of disability certificates are abmahnfähig.
  • Prohibition of discrimination : If employees violate the prohibition of discrimination in Section 7 (1) AGG , the employer must take the appropriate, necessary and appropriate measures to prevent discrimination such as warning, implementation, transfer or termination ( Section 12 (3) AGG). .
  • Reputation damage : The dissemination of untrue or one-sided information to the detriment of the company is subject to a warning.
  • Disturbance of the operational peace : Repeatedly disrespectful or aggressive behavior towards other employees can lead to a warning.
  • The main case of the warning is behavior-related dismissal ; in personal dismissal situations it is usually not necessary - however with exceptions recognized by the highest court (e.g. in the case of alcohol abuse or in the absence of, but fundamentally achievable, permission for secondary employment ).
  • Violation of applicable criminal law : The employer may no longer respond to the minor theft of objects or products by giving notice without notice, but instead has to issue a warning according to the BAG's “Emmely judgment” from June 2010. The validity presupposes a petty theft and a long -term undisturbed employment relationship . Then it can be expected of the employer to resort to the milder means of warning. Immediate termination without prior warning is only possible in the case of particularly serious criminal offenses , because in such a case the employee should know in advance that the employer will not tolerate such misconduct.
  • Instructions : Company written or verbal work instructions must be followed, even if they are not considered useful in individual cases. However, the behavior of the employee required by instructions must also beowed inthe employment contract .

Distance claim

Employees can request the removal of an incorrectly issued warning from their personnel files in accordance with § § 242 , § 1004 Paragraph 1 Clause 1 BGB . The claim exists if the content of the warning is indefinite, contains incorrect statements of fact, is based on an incorrect legal assessment of the employee's behavior or violates the principle of proportionality . It also exists if the employer no longer has a legitimate interest in keeping it in the personnel file, even if a warning has been correctly issued. The removal claim is legally enforceable. In the process, according to the prevailing opinion, the employer bears the burden of presentation and proof of the justification of the warning. Instead of requesting removal, an employee can simply write a reply to the warning and, in accordance with Section 83 (2) BetrVG, request that the employer add the reply to the personnel file.

The removal of a rightly issued warning from his personal file can only be requested if the behavior complained of has become meaningless in every respect for the employment relationship.

Statute of limitations

There are no statutory limitation periods for warnings. However, it has lost its importance in the course of the past. If an employee has changed his behavior in the sense of the warning and has behaved properly over a longer period of time, the previous misconduct may no longer be used for a later notice of termination . A warning is "in the world" as long as it is in the personnel file. It can be assumed that a removal of the warning from the personnel file may be requested after two years. In the case of wrongly issued warnings, the successful action before the labor court leads to removal from the file by a court judgment.

See also

literature

  • Friederike DeCoite, Thomas Muschiol: Warning and termination - what to do? Haufe, Planegg / Munich 2006, ISBN 3-448-07742-9 (formerly with ISBN 3-448-06546-3 ).
  • Pascal Croset, Markus Dobler: The legally secure warning - a guide for the HR department and management . 1st edition. Gabler Verlag, Wiesbaden 2012, ISBN 978-3-8349-2959-4 .
  • Fabian Novara / Merle Knierim: The labor law warning after the "Emmely" decision , NJW 17/2011, 1175

Individual evidence

  1. ↑ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 25
  2. ^ BAG, judgment of November 10, 1993, Az .: 7 AZR 682/92
  3. ^ BAG, judgment of June 19, 1967, Az .: 2 AZR 287/66
  4. ↑ BAG, judgment of January 18, 1980, Az .: 7 AZR 75/78
  5. ↑ BAG, judgment of January 17, 1989, Az .: 1 ABR 100/88
  6. ^ BAG, judgment of January 15, 1986, Az .: 5 AZR 70/84
  7. ^ BAG, judgment of October 15, 1986, Az .: 5 AZR 70/84
  8. ^ BAG, judgment of December 11, 2003, Az .: 2 AZR 667/02
  9. ↑ BAG, judgment of January 17, 2008, Az .: 2 AZR 536/06
  10. ↑ BAG, judgment of August 29, 2013, Az .: 2 AZR 273/12
  11. ↑ BAG, judgment of June 4, 1997, Az .: 2 AZR 526/96 = NZA 1997, 1281
  12. ^ BAG, judgment of December 11, 2001, Az .: 9 AZR 464/00
  13. ↑ BAG, judgment of June 10, 2010, Az .: 2 AZR 541/09
  14. ^ BAG, judgment of August 12, 2010, Az .: 2 AZR 593/09
  15. ↑ BAG, judgment of January 20, 2015, Az .: 9 AZR 860/13
  16. ↑ Landesarbeitsgericht Rheinland-Pfalz , judgment of December 21, 2012, Az .: 9 Sa 447/12
  17. ↑ BAG, judgment of July 19, 2012, Az .: 2 AZR 782/11
  18. ^ BAG, judgment of August 5, 1992, Az .: 5 AZR 531/91