Official reference
A OF ADMINISTRATIVE reference is in labor or civil service law , a disciplinary measure taken by the employer or employer towards employees in writing .
General
The word reference comes from the Old High German verb farwizan and the Middle High German verb bewizen , which means something like "to blame, to blame" or "to blame someone for something". The philologist Joseph Kehrein understood in 1853 the reference "to make someone notice something that has happened with words in a punitive manner". This term has been preserved to this day.
In practice, at least 26 different terms are used for reactions by employers to breaches of duty by employees. The reference as one thereof is the result of intentional service duty injuries , injuries to the work requirement or misconduct that a misconduct represent. To sanction breaches of duty, the employer has a catalog of disciplinary measures - increasing in severity - of which the weakest do not contain any threat of dismissal and are therefore not sufficient to support a conduct-related dismissal . The Federal Labor Court (BAG) commented on only a few disciplinary measures in October 1989: "The employer can respond to violations of the employee's contractual obligations with individual legal means, a warning, a transfer, a termination or an agreed contractual penalty". Sanctions for violations that go beyond the employer's individual legal options are only possible as operating fines. While labor law has no legal norms on reprimands or other disciplinary measures , there is a final catalog of measures in civil service law that are also used analogously in private labor law (see disciplinary measure (private sector) ).
These have been regulated since January 2002 in the Federal Disciplinary Act (BDG), which only applies to federal civil servants . In the federal states, the disciplinary law for state civil servants is regulated in their own laws, which follow the same concept in spite of differing laws in some cases. The starting point of disciplinary law considerations of the BDG is always that civil servants commit an official offense if they culpably breach their duties. If there are sufficient factual indications for this, the employer has the duty to initiate disciplinary proceedings and to determine the relevant facts in these proceedings . At the end of the investigation, he has to decide whether the proceedings will be discontinued or disciplinary action will be necessary.
species
The weakest disciplinary measure is the hearing , the next higher is the warning , followed by a reprimand. All three belong to the company fines , which are intended to maintain safety and order in the company by punishing behavior that is harmful to the community. They are used when employees violate binding rules of conduct to ensure the undisturbed work flow or the smooth coexistence of employees.
In addition to the (simple) reprimand, there is also the severe reprimand and (in the case of the Bundeswehr ) the strict reprimand . While the simple reprimand can also be pronounced orally among witnesses and then put on record, a serious reprimand punishes gross violations of the duty to work. Which of the types of reference is used in the individual case depends on the principle of guilt and the principle of proportionality ( prohibition of excess ) applicable in civil service disciplinary proceedings - and analogously applicable in labor law . According to this, the disciplinary measure pronounced against the civil servant / employee must be in a fair proportion to the gravity of the official offense and to the fault of the civil servant / employee, taking into account all burdensome and exonerating circumstances. First of all, the lowest disciplinary measure should be used for an official / employee, and more stringent measures are then used for repeated violations. Disapproving verbal statements ( instructions , warnings , warnings or complaints ) that are not expressly designated as reference are not considered disciplinary measures.
content
Mandatory components of the reference are the employer, employer and service department / department , the employee is accused of misconduct by describing the facts (violations of work or service instructions , laws ), information on the correct fulfillment of the incumbent work duties and the opportunity to be heard . The latter arises from Section 82 (1) BetrVG , according to which the employee has the right to be heard by the persons responsible for operational matters that concern himself. References must be made in writing and signed by the disciplinary superior . References must not contain any threat of termination in the event of repetition, because it is then a warning , even if it is overwritten with "reference". Written references and any counter- statements by the employee are added to the personnel file .
According to the "Arbeitsbuch der Arbeit" (GBA) applicable in the GDR between April 1961 and June 1977 , a reprimand according to Section 109 (1) GBA could be considered if "the educational purpose could not be achieved without the right to disciplinary action. , but the culpable breach of duty was not so badly disciplined that it ... [required] a strict reprimand as the last disciplinary measure before the dismissal without notice ”.
Officer
According to the final list in Section 5 (1) of the BDG, the reprimand represents the mildest type of duty warning. According to the legal definition of Section 6 BDG, the reprimand is a written rebuke of a certain behavior on the part of the civil servant. The personality profile to be taken into account according to § 6 BDG is based on the personal circumstances and the other official conduct of the civil servant. The decision on a disciplinary measure is made in accordance with Section 13 (1) BDG at the discretion of the law , whereby the disciplinary measure is based on the gravity of the official offense. Formally, a disciplinary order must meet the competence, form and reasoning requirements of Section 33 Paragraphs 1, 2 and 6 BDG. According to Section 33 (2) BDG, every superior is entitled to reprimand and fines the officials subordinate to him. The right to be heard is to be granted in accordance with Section 24 (3) BDG. The requirement to be heard gives the civil servant the right to share evidence, in particular the right to access the sources of the investigation. In the official disciplinary proceedings according to Section 24 (4) BDG, this applies not only to the questioning of witnesses and experts. The same must apply to the requesting of written statements that is permissible in accordance with Section 24 Paragraph 1 Clause 2 No. 2 BDG.
The superiors can issue disciplinary measures such as reprimands, fines , reductions in salaries and reductions in pension by means of a so-called disciplinary order. It is an administrative act that can be contested with the legal remedies and legal means of objection , the challenge and - under certain conditions - the appeal and the revision .
soldiers
According to Section 23 (1) of the WDO , the reprimand is a formal reprimand for a certain breach of duty on the part of the soldier ; the strict reprimand is a reprimand that is made known to the troops (Section 23 (2) of the WDO). Disapproving statements by a disciplinary superior that are not expressly referred to as reprimands or strict reprimands (instructions, warnings, reprimands or similar measures) are not disciplinary measures according to Section 23 (3) WDO. This also applies if they are combined with a decision by which the disciplinary superior or the initiating authority establishes an official offense, but refrains from imposing disciplinary measures or initiating judicial disciplinary proceedings.
meaning
To statistics from the BMI According there were in 2015 only to 0.141% of all federal officers will result in disciplinary action, with a salary reductions and to 0.036%, a reference was pronounced against 0.058% a fine 0.039%. Most of the staff received fines .
Individual evidence
- ↑ Joseph Kehrein, Onomatisches Dictionary , Volume 2, 1853, p 943
- ↑ Ursula Schlochauer, Co-determination-free warning and operating fines subject to co-determination , DB 1977, p. 254
- ↑ Hartmut Hiddemann, Arbeitsrecht , 2016, p. 177
- ↑ BAG, judgment of October 17, 1989, Az .: 1 ABR 100/88
- ↑ Wolfgang Hromadka, Labor Law for Superiors , 2014, o. P.
- ↑ BVerwG, judgment of December 15, 2005, Az .: BVerwG 2 A 4.04
- ↑ BMI, Modern Administration and Public Service - Service Law , 2016 ( Memento of the original from November 30, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , accessed November 15, 2016
