Working End > Dismissal > Warning Letter

Warning Letter as a Predecessor of the Dismissal

Definition, Explanation

Normally, a dismissal on grounds of conduct is preceded by an “Warning Letter” (similar to a cease and desist order, or warning) by the employer. Its purpose is mainly notifying the employee about his violation of contracted duties and averting further misconduct. It can be enunciated by a boss of the employee in response to an incident of misconduct or violation of the employment contract by the employee. Dismissal protection is cancelled by a warning letter.

In case of repetition, the employee is usually threatened with dismissal. The warning letter can be enunciated in written or orally, whereas it is highly recommend to choose the written form. a warning letter gives the employee a last opportunity to change the criticized behaviour.

Reasons for a warning letter can be:

• Unexcused absence
• Unpunctuality
• Neglecting of sick-notification
• Sickness pretence
• Exerting of an unauthorized side-job
• Alcohol abuse
• Smoking despite smoking-ban
• Violation of a boss's order
• Private use of internet or telecommunication facilities or e-mail
• Accident with a company car
• Refusing to take on certain tasks
• Deficient fulfilment of tasks
• Insult or assault on colleagues or bosses
• Anticompetitive behaviour according to § 60 HGB

There is no warning letter permitted for being sick. The behaviour of concern must be self-amendable by the employee, for a warning letter to be allowed.

There is also an obligation to prior warning letter for the employee: for instance, when the employer fails to pay the salary, the employee would not want to just cancel without prior notice; without a warning letter enunciated towards the employer in advance, the employee will not be entitled to any damage claims (Az: 9 Ca 2241/03).

In cases of severe violations of duty as e.g. theft, no warning letter is necessary. Here, the dismissal without notice is legal.

Tips, Checklist

For the employee:

• Verify that your warning letter is factually and formally correct. As for the formal, it comprises the following:
  • Complaint: Defining the actual facts of misconduct, respectively violation of the employment contract including the date and time
  • Notification: Stating that repetition of the misconduct or violation will not be tolerated
  • Announcement: Making aware that in case of repetition, cancellation will succeed
• When any of those components is missing, it is not a warning letter but an animadversion or admonishment
• Secure all evidence if no warning letter is justified (witnesses, memos)
• When you sign, only sign confirming your receipt of the warning letter, never its factual correctness or similar
• You do not necessarily have to take action against a warning letter. A warning letter alone is no justification for cutting the wage or salary, or for cancelling privileges or temporarily banning you from advancement
• If the accusations are not the facts, then at all events write a counter statement. It is to be added to the personnel file just as the warning letter is. This way, in case you change jobs, you can prevent a negative image
• If a warning letter is added to your personnel file, your employer must notify you of it
• You can request removal of the warning letter from your personnel file, via a written complaint. In addition, you can complain before your employer or the works council about the boss of yours who enunciated the warning letter Possibly your collective agreement even compels the employer to have a private hearing of the subject of the warning letter. If so and the hearing is not conducted, the warning letter will be invalid
• In a later dismissal protection trial, the burden of proof that the warning letter was justified will be on the employer, even if you do not do anything against the warning letter
• Above all, stay objective, and study the accusations
• Perhaps be counselled by the works council, respectively ask them for support and mediation
• Request removal of the warning letter from your personnel file, after 2 years
• Get support by a lawyer and if necessary take action, for enforcing the revoking of the warning letter and its removal from the personnel file
• You can also abmahnen your employer when they do not pay your salary in time, or demands illegal working hours. If you do this prior to cancelling the job, you will not risk any interruption period in your unemployment benefits

For the employer:

• Make sure that the factual occurrences are depicted in the warning letter. Also, you must explicitly notify the reader and recipient that you are not willing nor about to accept repetition of that misconduct or violation. And, state what will happen in case of repetition, e.g. dismissal
• Enunciate, or file, the warning letter soon after the misconduct / violation. Otherwise you risk that it will be illegal
• For mentioning several of misconducts or violations in a warning letter, every single accusation must be justified. Otherwise, the whole content of the warning letter will be invalid
• The “warning letter” does not need to be designated as such. What is important is that misconduct or violation is pointed out and that, in case of repetition, dismissal will succeed
• If the warning letter is added to the personnel file, you must notify the employee of it. The employee has a principal right to a hearing and to review, according to § 82 Abs. 1 BetrVG
• As a precaution, inform the works council about the warning letter. Thus you do not risk violating § 102 BetrVG
• Suit the action to any measures you have threatened with in the warning letter, and do not enunciate several warning letteren for the same sort of misconduct or violation. Such would devaluate the warning function. Therefore, dismiss the employee after the 3rd warning letter, at the latest

Last update: 12/16/2009