Warning
Notion
A warning is given, orally or in writing, to an employee to reproach him or her for the quality of his or her work or his or her behavior towards colleagues or in the workplace. For reasons of proof, the employer will prefer the written form. In principle, the warning contains the threat of sanctions if the employee does not improve or persists in his behaviour.
Principle
When the employer wishes to dismiss an employee, he may in principle do so without issuing a warning. However, there are situations in which one or more warnings are required before proceeding with the dismissal. The employer may sometimes be required to issue a warning to put an end to certain conflictual or dangerous situations.
Immediate Dismissal
The employer may dismiss the employee with immediate effect for just cause when the employee has committed a breach of trust that is essential to any employment relationship.
When the breach is less serious, the employer must issue one or more warnings beforehand. Only if the employee persists in violating his or her contractual obligations may he or she be dismissed with immediate effect.
To determine whether a warning is necessary, all the circumstances of the case must be taken into account. Such as the seriousness of the employee's misconduct and the resulting damage. The number of years of service of the employee, his hierarchical position, his young age, especially in the case of an apprentice, and any previous warnings or incidents must also be considered.
Ordinary dismissal
In principle, the employer is free to dismiss an employee as long as the notice period is respected. As a rule, a warning is not necessary. However, if the employee is elderly, the employer must be more considerate of the employee. A warning is often necessary to avoid the risk of wrongful dismissal.
Violation of the duty of loyalty
The employee must refrain from any behavior that damages the interests and image of the employer. A breach of this duty of loyalty, in particular when the employee engages in a competing activity without the employer's knowledge, can often be grounds for immediate dismissal without a warning. However, all the circumstances of the case must be taken into account.
Executives have an increased duty of loyalty. Their faults will be judged with greater severity because of their hierarchical position. A breach will be considered more serious and may more easily be the subject of immediate dismissal without prior warning. This may be the case when the manager abuses his or her powers of representation or commits an act of sexual harassment.
Alcohol at work
Risk of accidents, endangering colleagues or third parties, reduction in the quality of work, damage to the company's image and reputation... An employee who appears at work under the influence of alcohol or drugs risks jeopardizing the employer's interests.
Depending on the circumstances, immediate dismissal may be warranted. But in many cases, one or more prior warnings will be necessary.
Criminal offence
The employee is obliged to safeguard the legitimate interests of the employer. If the employee commits a criminal offence against the employer, the employer may terminate the employee with immediate effect, with or without a warning depending on the seriousness of the case.
Theft, recording of the employer without his knowledge: the question of whether a prior warning is necessary can be delicate.
Conflicts at work
Mobbing, sexual harassment, simple disagreement between colleagues or even a love affair between colleagues that goes wrong, conflicts at work remain frequent. The employer is bound by his duty to protect the personality of his employees.
He must take reasonable measures to put an end to the conflict. In this context, a well-written warning letter can be particularly effective. If the employer simply dismisses one or other of the parties without taking any other measures, he or she may be liable for wrongful dismissal.
In very serious cases, the employer may terminate the employee immediately, without warning. All the circumstances must be considered, including the possible fault of the employer or the colleague with whom the conflict arose.
Surveillance
The employer is often tempted to set up surveillance systems to safeguard the interests of the company. Such surveillance may be aimed at preventing theft or at combating misuse of the Internet at work. If the employer discovers violations, he can issue a warning. However, the employer must respect certain conditions in order to be able to implement surveillance that respects the personality and data of its employees without incurring liability.
Social networks
In principle, employees have the right to freedom of expression and can express themselves freely on social networks. However, they must not harm the interests or image of their employer or disclose confidential information. Some publications are inadmissible and can lead to a warning.
Phone and computer
It is well known that some employees sometimes use their professional cell phone or computer to make private calls or consult websites at work. This behavior is quite harmless when it remains within reasonable limits and is done during breaks. However, the consultation of certain sites, in particular pornographic sites, or untimely downloads can damage the company's image or the security of data. The employer must react.
Duty of care, loyalty and confidentiality
The employee must refrain from any behavior likely to cause damage to the employer and inform him of anything that could be detrimental to him. He must also keep confidential all confidential information. If an employee gets into a fight with a colleague, works for the competition or reveals the company's poor financial situation, he or she may be warned or even dismissed immediately without prior warning.
Unjustified Absence
An employee who takes a vacation without the employer's consent... An employee who is particularly concerned about the Covid-19 pandemic and refuses to come to work... Or an employee who takes time off work without the employer's consent to participate in a political strike. Such absences, when unjustified, may be grounds for a warning.
Employer's responsibility
The employer must be particularly vigilant. When an employer issues an immediate dismissal without prior warning when a prior warning was required, the immediate dismissal may be qualified as unjustified. The employee will be entitled to what he or she would have earned had he or she been terminated in the ordinary way and to additional compensation for unjustified immediate termination.
In addition, if the employer has not taken the necessary measures and issued warnings in the context of a conflict in the workplace, it is in breach of its legal obligations to protect the individual. If the employer dismisses one or more employees without warning, the dismissal may be considered abusive.
The bill can be high!