What a written warning is and what functions it serves
Under the Federal Labour Court’s judgment of 19 July 2012 (2 AZR 782/11), an employer exercises its contractual rights as creditor in two respects with a written warning. It points the employee to the duty that was breached and puts the incident on record. This is the censure and documentation function.
At the same time it demands compliant conduct for the future and threatens individual legal consequences should the breach recur. The court calls this second part the warning function.
The employment relationship does not end through a written warning; it only takes effect once the employer later gives notice. Under § 1(2) KSchG a conduct-related dismissal is only socially justified if no milder means would suffice, and for controllable misconduct that milder means is regularly the written warning.
When a written warning is invalid or open to challenge
The Federal Labour Court names four points of attack in its judgment of 19 July 2012 (2 AZR 782/11). The warning is unspecific in content, it contains incorrect factual claims, it rests on an inaccurate legal assessment of the conduct, or it violates the principle of proportionality.
A warning is unspecific if the employee cannot tell from it what conduct is being held against them. Wording such as “poor work performance” or “uncollegial behaviour” does not meet that standard. The date, place and precise course of the censured incident belong in the text of the warning.
Beyond these points, the warning function itself can be missing, that is, the announcement of individual legal consequences should the conduct recur. Without it, the censure cannot support a later conduct-related dismissal. Whether the censure matches the weight of the accusation is measured by the labour court against the principle of proportionality.
What you can do after a written warning
After a written warning you have two options: a counterstatement to the personnel file under § 83(2) BetrVG, and a claim for removal of the warning by analogous application of §§ 242, 1004(1) sentence 1 BGB. Which route works depends on whether the warning was issued rightfully.
Counterstatement to the personnel file
Under § 83(2) BetrVG an employee’s statements on the content of the personnel file must be added to it at their request. You can therefore place a written counterstatement alongside the warning, which the employer must add to the file.
The provision sets no deadline. The counterstatement should address the individual accusations and set out the facts from your point of view, with date and course of events.
Removal of the warning from the personnel file
Under the Federal Labour Court’s judgment of 19 July 2012 (2 AZR 782/11), you can have a wrongfully issued warning removed from the personnel file by analogous application of §§ 242, 1004(1) sentence 1 BGB.
A rightfully issued warning is different. It only has to be removed once the censured conduct has become wholly irrelevant to the employment relationship. According to the same decision, there is no fixed time limit for how long it may remain in the personnel file.
The claim is directed against the employer; failing agreement, Augsburg Labour Court decides.
Written warning as a precondition for dismissal
Before a conduct-related dismissal the employer must as a rule have issued a relevant warning for controllable misconduct. Under the Federal Labour Court’s judgment of 19 April 2012 (2 AZR 258/11) it is enough that the breaches of duty come from the same area and that the grounds for the warning and for the dismissal are internally connected.
Under § 1(2) sentence 4 KSchG, the employer must prove the facts on which the dismissal is based. In unfair dismissal proceedings the employer must therefore show where the censured and the dismissed conduct coincide.
When dismissal is possible without a warning
Under the Federal Labour Court’s judgment of 10 June 2010 (2 AZR 541/09) a warning is dispensable in only two cases. The first: even after a warning, no change in conduct can be expected. The second: the breach of duty is so serious that the employee must have realised themselves that the employer would not accept it.
Whether this standard is met is decided by the grounds for dismissal, the personnel file and the previous course of the employment relationship.
No absolute ground for dismissal, even for criminal offences
The law recognises no absolute grounds for dismissal. Even for a criminal offence against the employer, the Federal Labour Court’s judgment of 10 June 2010 (2 AZR 541/09) requires an assessment tied to the individual case and a weighing of interests.
The question is whether continuing the employment relationship remains reasonable for the employer, at least until the notice period expires, and whether the employee would, at least after a warning, have behaved in a compliant manner again. The duration and course of the employment, and the seriousness of the harm, feed into this assessment.
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