In this case, the employer and employee are discussing a written warning issued to an employee. The employee felt that this warning was not based on the facts and therefore wrongfully issued and should be removed from his personnel file. The employer does not agree. What does the judge think?
The facts are as follows. On 23 January 2018, the employee was teaching toddlers in an indoor swimming pool. At a certain point, the employee had to adjust the bottom of the pool; all the guests had left the pool and were standing on the side waiting to re-enter. However, a guest who had just entered the pool was about to do so. The employee tells the guest that this is not allowed for safety reasons. The guest still wants to enter the swimming pool and reacts in a provocative manner. The employee reported the incident to the branch manager by telephone. In a registered letter dated 24 January 2018, Laco issues an official warning to the employee. According to Laco, employee's behaviour was unprofessional and not guest-oriented. In a letter dated 6 February 2018, the employee's representative at the time explained the course of events and objected to the warning given, requesting that the warning be deleted from the personnel file. On Monday 5 March 2018, a meeting took place in which it was stated that the official warning would be upheld. The central question is whether Laco was right in including and maintaining the note in the personnel file, including all documents relating to the matter, in this case.
The judge ruled as follows. The starting point is the content of the written warning. This was given for, in short, intimidating and threatening behaviour towards guests and colleagues in a loud voice. The warning was classified as a disciplinary sanction and was further reinforced by the statement that, should it be repeated, "other measures under employment law will be taken".
It has not been proven or established that Laco conducted a further investigation into the circumstances prior to the warning, especially since the employee did not agree with the findings. Moreover, Laco subsequently broadened the basis of both the warning and the note in the file by (a) accusing the employee of not lowering the bottom of the swimming pool according to the rules and (b) accusing him of addressing a colleague in an intimidating way shortly after the incident. However, it is negligent to impose an official warning, subsequently converted into a note, without, for example, carrying out an investigation and hearing both sides of the argument, and later to give it a different basis.
Finally, it is also important to note that, all things considered, Laco could not reasonably have come to the factual conclusion and decision that employee had behaved in the way he had indicated in the initial warning. This leads to the conclusion that the decision to issue the written warning was not taken with sufficient care. It is not based on a sufficient factual basis and therefore violates the reasonable requirements of good employment practice. Laco will therefore have to remove the recorded note from the personnel file.
You can read the judgment here
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