Dismissal on grounds of conduct without prior warning?

As a general rule, a warning is preferable to dismissal as a less severe measure due to the principle of proportionality. However, it can also be dispensed with. In individual cases, the question must be asked whether a warning is suitable for changing the employee’s reprimanded behaviour. If a change in behaviour is impossible or unlikely, a warning may not be necessary. However, it is not sufficient for such a negative prognosis that an employee shows a lack of understanding following their violation.

In addition, no prior warning is required for particularly serious offences committed by the employee. This is the case if the employee can easily recognise the illegality of the violation and the employer cannot be expected to accept it due to the irreparable loss of trust. This includes the committal of property offences by the employee, even at the attempted stage.

Threat of dismissal as a warning?

Anticipated threats of dismissal do not generally serve as a warning. Consequently, a warning is not dispensable if the employee violates a behavioural instruction previously issued by the employer with a specific threat of dismissal. The reason for this is that a general threat of dismissal does not fulfil the warning and advisory function of a warning in the same way. This is usually only fulfilled if it represents a reaction by the employer to a specific breach of contract. Nevertheless, such a threat can make a warning unnecessary in the event of a serious breach of duty.