Have you received a warning letter that you consider unjustified, and do you want to prevent it from being added to your personnel file?
You should carefully review a written warning, as it is often the first step toward termination for cause. In the warning, the employer cites misconduct or a breach of contract that it will no longer tolerate in the future.
A written warning does not necessarily have to be titled “Written Warning.” Even
A “reprimand” or a letter without a heading or subject line can constitute a formal warning under employment law if it cites specific misconduct or a breach of duty and threatens termination of employment in the event of a recurrence.
What can I do about the warning?
If you believe the warning letter is unjustified, you have several options. Since the warning letter is typically placed in your personnel file, you can demand that it be removed; if your employer refuses, you can also sue to have it removed in labor court. Many warning letters already contain formal errors that render them invalid on that basis alone.
Another option is to submit a written counterstatement regarding the facts alleged in the written warning. The employer must also include such a counterstatement in your personnel file.
In any case, it is advisable not to accept a warning letter without comment, but to challenge it with the help of a lawyer specializing in employment law.
As employment lawyers, we are here to assist you both in your efforts to have the warning letter removed and in drafting a well-crafted counterstatement.
In some cases, if you yourself no longer wish to remain with the company in the medium term after receiving a warning letter, it may also be possible to enter into negotiations for a termination agreement that will terminate the employment relationship at a future date without further legal disputes.
Warning Letter – Significance Under Termination Law
The warning letter is significant for a subsequent termination for cause because the employer can generally only issue a termination for cause if they have previously reprimanded the employee for misconduct that they consider a breach of contract and have given the employee the opportunity to behave in accordance with the contract in the future.
Only in cases of very serious breaches of contract is termination without notice generally possible without first issuing a warning letter. In the law governing termination for cause, this is known as the “ultima ratio” principle.
On the other hand, the specific breach of contract cited in the written warning can no longer be used as grounds for a subsequent termination. Rather, a new breach of contract or a new violation of duties must occur.
Typical breaches of duty leading to written warnings
- Alcohol in the workplace
- Failure to follow work instructions
- from a supervisor Refusal to work
- Failure to adhere to working hours
- Returning late from a break
- Late
- notification of sick leave Failure to submit a certificate of incapacity for work
- Damaging the employer’s reputation (e.g., on social media or toward customers)
- Insulting coworkers or supervisors
- Failure to comply with occupational safety regulations
- Intentional poor performance
- Unauthorized secondary employment
- Disruption of workplace harmony
- Workplace bullying
- Unexcused absence
- Failure to follow established work processes
As certified specialist lawyers in employment law, we deal daily with a wide variety of written warnings concerning the contractual violations listed above.
Warning Letter: What You Should Keep in Mind
A written warning does not have to be removed from the personnel file by the employer after a specific period of time. A written warning can therefore still have an effect years later as a preliminary step toward termination for cause.
It is therefore particularly important not to accept a warning letter without response, but to take timely action to ensure that the employment relationship is not compromised by unfounded allegations or even terminated.
