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Warning

Viimati uuendatud: 02.11.2017


The employer is entitled to extraordinarily terminate the employment contract if the employee has repeatedly ignored the employer’s reasonable orders or breached their work duties and the employer has warned the employee that the continuance of such behaviour is not allowed and could trigger the employment contract termination (ECA §88 s 1 ss 3, LOA §196 s 2).

Previous warning is also presumed when the employment contract is terminated due to the persistent decrease of the employee’s working ability (ECA §88 s 3) or when attending work drunk (ECA §88 s 1 ss 4).

According to employment legislation denunciation principles, terminating the employment contract should be avoided, if possible. It should be used as the last measure in a situation where continuing the employment relationship is no longer possible at all. Due to the aforementioned and emanating from the loyalty principle, the employer must therefore tolerate, to a certain extent, the employee’s not the most pleasing behaviour. If the employee continues with the violation, the employer is entitled to terminate the employment contract.

Therefore, the warning aims to draw the employee’s attention to the breach and give them the opportunity to improve their behaviour. Without feedback, the employee might not be aware of their defective work and can therefore not consider that their behaviour could bring along serious consequences.

Law does not prescribe the mandatory form, content nor amount of the warning. The warning could be oral, in a written and reproducible form (e.g. email), or in writing. The employer must be able to prove lateron that the warning was made.

The description of circumstances, facts clarifying the incident, and a warning that the employer is entitled to cancel the employment contract in an extraordinary manner if the breach re-occurs, must be forwarded to the employee. Receipt is usually certified by the employee’s signature, accompanied by the receipt date.

Previous warning is not necessary if the employee cannot expect it from the employer even according to the good faith principle due to the extreme severity of the incident.

Warning is not necessary in the case of a severe breach (LOA §116 section 2 subsections 2 through 4), primarily when:

  1. The employee breached an obligation, the precise following of which was the employer’s main reason in concluding the contract;
  2. The employee violated the obligation intentionally or it resulted from severe negligence;
  3. The obligation violation gives the employer sufficient reason to believe that the employee will not fulfil their responsibilities also in the future.

It is necessary to evaluate whether the warning serves its’ purpose also when the employee’s working ability decreases or when the employee attends work while drunk. If the employee has been on a sick leave for a very long time, or if a doctor thinks that the employee may no longer work at this position, it is not very reasonable to delay the termination of the employment contract. Also, attending work when drunk can be regarded as a severe breach.

The employer must be able to explain the termination of the employment contract without any prior warning in detail, if law presumes that the employee is warned first.

A warning cannot be contested separately at the labour dispute committee. When a warning is received, the employee can present their counter-arguments to the employer in writing, and repeat them in the case of any future disputes.

In the case of disputes, a warning is relevant for evaluating the employment contract termination and its’ invalidity. If the employer terminates the contract for reasons emanating from the employee and proves it by listing previous warnings and their results, the labour dispute committee or court shall evaluate in each case whether the employment contract termination has been legal. When evaluating the legitimacy, both the content and effect of the warnings and the employee’s explanations when receiving the warning are important.

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