Disciplinary measure (private sector)
Disciplinary measures (also: company fines) in the private sector punish violations by employees of employment contracts , company regulations or work instructions .
General
On the basis of his employment contract , the employee also owes compliance with company regulations. The employer is therefore not limited to those cases in which the employee has violated obligations that only affect his work behavior or his work performance . These are regulated by the employment contract. The company management can also decide whether the company introduces disciplinary measures and employs disciplinary superiors. In doing so, it must note that the introduction of disciplinary measures requires a works agreement in accordance with Section 77 (2) BetrVG . The case law of the labor courts presupposes a works agreement with the works council for the imposition of operational fines.
The company regulations regulate the coexistence and cooperation of employees in the company. Thus there are regulations that have the orderly behavior of employees as their object and rules and measures that have the work behavior of the employee as their object. The company rules can contain provisions on how violations of these company rules are to be sanctioned and regulate the procedure in which such sanctions are imposed. The complex of these regulations includes a company fine order and any regulations on the imposition of a company fine, whose co-determination obligation has been affirmed by the Federal Labor Court (BAG).
species
Depending on the degree of severity, a distinction is made between hearing , instruction , reprimand , warning and official reprimand ( company fines ). For them, however, the external designation does not matter, so that a complaint or a reference or similarly designated complaints can only represent a warning. Followed by the admonition , the temporary exclusion of voluntary benefits ( bonus ), demotion , fines and a severe form of disciplinary action the warning . A transfer of the employee or finally a conduct-related dismissal can also be considered . If the employer takes such measures, these are subject to the participation of the works council regulated in works constitution law, for example in accordance with Section 99 BetrVG or Section 102 BetrVG. There is also the option of stipulating a contractual penalty in the employment contract in accordance with Section 339 BGB . The dismissal is not permitted as a disciplinary measure because it without notice to the protection against dismissal is incompatible.
Legal issues
The employer can respond to violations by the employee of his contractual obligations with individual legal means, a warning, a transfer, a termination or an agreed contractual penalty. The works council is only involved in these measures in accordance with Section 99 BetrVG and Section 102 BetrVG. It is irrelevant whether the reported violations are against the collective operational order or against orders with regard to work behavior. Any further sanctions by the employer are only possible in the form of company fines.
Disciplinary measures are subject to co-determination. They may only be pronounced by the disciplinary superior , but not by the specialist superior . Only disciplinary measures that are to be regarded as operating fines are subject to co-determination. It depends on the content of the measure. A company fine punishes a violation of the operational order. Since the violation of company regulations is also a breach of contractual obligations, the employer can impose a company fine for such misconduct. According to Section 87 (1) No. 1 BetrVG, the works council's right of co-determination also includes the right to have a say in the establishment of a fine as well as the imposition of a company fine in individual cases. The principle that such penalties are only permissible if the criminal offense and its consequences have been standardized beforehand must also apply to company fines or company fines. The principle of nulla poena sine lege must also apply with regard to a company punitive power and thus a company fine. However, there is no right of co-determination in the case of warnings if they do not constitute operating fines.
The disapproval expressed by the employer that hampers promotion may lead to a temporary ban on promotion for the employee concerned , especially since the employee has no legal right to promotion. Company penalties can result in the employee concerned temporarily not being promoted.
Individual evidence
- ↑ Reinhard Höhn / Gisela Böhme, Management Brevier der Wirtschaft , 1974, p. 306
- ^ Günter Schaub , Arbeitsrecht von AZ , 1997, p. 315
- ^ BAG, judgment of April 28, 1982, Az .: 7 AZR 962/79
- ^ BAG, judgment of November 7, 1979, Az.:5 AZR 962/77
- ^ BAG, judgment of February 5, 1986 - 5 AZR 564/84
- ^ BAG, judgment of April 28, 1982, Az .: 7 AZR 962/79
- ^ BAG, decision of October 17, 1989, Az .: 1 ABR 100/88
- ↑ BAG, judgment of January 30, 1979 - 1 AZR 342/76
- ^ BAG, decision of October 17, 1989, Az .: 1 ABR 100/88
- ^ BAG, decision of October 17, 1989, Az .: 1 ABR 100/88
