If employers want to get rid of an employee, warnings are often issued in advance. However, employees are not at the mercy of such warnings. Those affected should therefore carefully examine warnings and take action against them – preferably before a termination is pronounced.
What are warning grounds
Every employer has the right to issue warnings to its employees if the behavior of the employee violates obligations under labor law.
Warnings are often issued if employees repeatedly come to work late without excuse or if employees insult their superiors or colleagues and thereby damage the working atmosphere in the long term.
Is the warning justified?
The warning is only effective if the alleged behavior is clearly described in the warning and the boss can prove that an offense contrary to the employment contract has occurred.
In addition, the warning must state that such behavior will not be accepted in the future. The warning that repeated offenses will result in consequences under labor law must also be part of the warning.
Other formal requirements must also be met. This includes the employer being able to prove that the person who received the warning actually received the warning. If this cannot be proven, the warning is ineffective.
Terminated after a warning
“The warning must be effective in order to terminate an employee,” warns the lawyer Altug. Only then can the employer issue a warning for behavioral reasons.
One speaks of “ordinary termination” if the job is announced within a contractually specified or statutory period of notice.
Conduct-related Termination
Behavior-related terminations are pronounced, for example, if the employee works for a competitor or takes vacation without first agreeing the vacation with the supervisor or the employer.
Termination without notice
A prior warning is also necessary for an extraordinary termination. In the event of an extraordinary termination, the termination shall take place without notice.
But: termination without notice can only be given in serious cases. Such a case occurs, for example, if the employee has stolen something from the company. Only in a few exceptions can the employer terminate the contract without a warning.
Warnings are often not justified
Many warnings are unjustified. Warnings are often forced by supervisors to get rid of unwanted employees. Whether there are ways to take legal action against a warning should always be discussed with an experienced labor law attorney.
Removal of the warning from the personnel file
If it has been determined that the warning was wrongly issued, a claim can be made to have the invalid warning removed from the personnel file. It is not uncommon for the warning to remain in the file despite being illegal.
But: a legal dispute with the employer can further poison the working atmosphere.
However, it always makes sense to write a counter-argument to the allegations formulated in the warning. Such a reply must also be included in the personnel file. In this way, the employee can ensure that the allegations are at least refuted.
Works council can help with warnings
Larger companies usually have a works council. Employees can submit a complaint to this. The works council examines whether the complaint is justified.
He stands up for the employee and ensures that the warning becomes ineffective if there are reasons against it. If no solution can be found, the works council can contact the arbitration board.
The arbitration board consists of assessors, who each consist of equal numbers of representatives from the employer and employee side.
In addition, an impartial chairman is appointed, which both sides (must) agree on. Labor judges are often appointed for this purpose. “In such procedures, good results have already been achieved for the employee,” confirms lawyer Cem Altug from Hanover.
Dismissal after a warning
Dismissals are regularly given after warnings. “It plays a significant role whether the warning is effective at all,” said the lawyer.
Because if the warning was not legal, neither is the termination. It therefore always makes sense to take action against the termination and to hire a lawyer who specializes in labor law.
First, the lawyer will file an action for protection against unfair dismissal with the competent labor court. However, because the relationship between employer and employee is regularly “poisoned”, severance payments are often negotiated before the labor court.
Have your severance payment entitlement calculated online
Here you can calculate a possible severance payment claim online free of charge permit. Most terminations are unlawful, which is why it is almost always worth taking action against a termination.
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