With Themis Partner, you can download your document in Word to modify it. You can also benefit from the assistance of our lawyers to advise you in the alert procedures of your employees.
First of all, it is necessary to check whether the collective agreement, a company agreement or the internal regulations provide for measures that derogate from common law. If this is not the case, the warning can be sent in writing: an e-mail, a registered letter with acknowledgement of receipt, or a letter delivered by hand against receipt. It is essential to register the warning, so a registered letter is preferable and more formal.
In principle, the employer is not obliged to call the employee to a preliminary meeting before pronouncing such a sanction. However, you can take the initiative to call the employee to a first meeting. You will then have to follow the entire disciplinary procedure. Moreover, the internal regulations applicable within your company or certain contractual provisions may sometimes provide for a specific disciplinary process and require you to call the employee to a prior interview, even when the sanction envisaged is only a warning.
The employee warning must be in writing and must not affect the employee’s qualification, remuneration or career development within the company. Also, avoid issuing verbal warnings, as this does not constitute a disciplinary sanction. Unless otherwise provided for in the collective agreement, no formalities are required to warn the employee. In practice, however, the employee warning letter must mention the date of the alleged offences, their nature, the qualification of these offences as professional misconduct or contrary to the internal regulations, but also whether they have already been the subject of a verbal remark and whether they cause prejudice to the company. Themis Partner’s sample employee warning letter allows you to benefit from an employee warning letter that includes all the information you need to warn your employee.
There is no definition of misconduct and even less an exhaustive list of misconduct. Only the case law allows us to approach the outline of the reasons that can lead to a warning:
|➤ Violation of company rules as defined in internal regulations or memos, such as using a cell phone during working hours|
|➤ Refusal to follow orders given by the employer, insubordination|
|➤ Violation of an obligation of discretion or loyalty|
|➤ Criticism, insults, threats, outbursts of anger against the employer or a colleague|
|➤ Negligence: for example, unjustified absence or repeated lateness can be the subject of a warning: errors, lack of investment in the work, unwillingness to work leading to poor results. A warning from the employee for a poorly done job is quite possible|
The sanction must be justified and proportionate to the fault committed. Check the texts applicable in your company in disciplinary matters:
If your company has internal regulations, you must respect what they say about disciplinary matters. Indeed, this document sets the general and permanent rules relating to discipline in the company and, in particular, sets the scale of sanctions. You must therefore look in your internal regulations to see what sanctions can be taken against your employee.
You do not have the right to impose a sanction that is not mentioned in the rules. You should also consult the collective agreement to which you belong, as it may provide for a specific disciplinary procedure.
Faced with an employee’s misconduct, it is up to you, as the employer, to qualify the misconduct according to its seriousness:
|➤ Minor misconduct|
|➤ Serious misconduct|
|➤ Intentional misconduct|
It is then up to you to decide whether or not to initiate disciplinary proceedings within two months of your management becoming aware of the wrongdoing.
There is no legal list of sanctions, but here are those used in practice:
|➤ A written warning|
|➤ Disciplinary layoff|
|➤ Dismissal (for multiple offences, serious or gross misconduct)|
In all cases, the employee may present his explanations to his employer. However, if the employee feels that the sanction is disproportionate to the fault committed, he or she may of course contest it first directly with the employer and then before the industrial tribunal. If the sanction is deemed to be abusive, the competent courts may annul it, except in the case of dismissal where another procedure is followed.
The sanction could be considered unjustified in the following cases:
|➤ The employer did not take into account the legitimate justifications: accident, problems with public transport|
|➤ The facts complained of are not proven or leave room for doubt as to their imputability to the employee|
|➤ The letter of sanction is not properly or insufficiently motivated|
|➤ The boycott is based on facts that cannot be sanctioned: refusal of a change in the employment contract, exercise of a right, etc.|
|➤ Unjustified sanctions do not necessarily lead to the annulment of the sanction; the judge may simply reduce it. If the sanction is annulled, the employer may not take another sanction relating to these facts.|
In this case, the seriousness of the misconduct will be compared to the company’s sanctions for the same facts. The judges may also decide to rely on the internal regulations. In principle, the judges must annul any disproportionate sanction. As an exception, they may simply reduce the sanction imposed to the one provided for in the internal regulations when the latter provide for a specific sanction. In case of annulment, the employer may decide to set a new sanction. In this case, the disciplinary procedure does not have to be restarted from the beginning, and the second sanction must be notified within one month of the first cancellation.
Any sanction based on discriminatory grounds is prohibited. It is up to the employee to prove that there is a disparity in treatment between employees and that the sanction imposed is based on biased elements. It is then up to the employer to prove that its decision is based on objective facts unrelated to the discrimination. Nor can the employer impose fines or financial penalties. By financial liability, we mean a reduction in salary, the reduction or elimination of a bonus, the elimination of a benefit in kind, among others.
On the other hand, the following sanctions are lawful: a reduction of the attendance bonus following the disciplinary layoff of the employee, a disciplinary demotion that is accompanied by a reduction in remuneration, or the refusal of a salary increase, which is neither mandatory nor general. The judge will necessarily annul the prohibited sanctions. The employer may not take any other sanction related to these facts.
No employee warning letter is required prior to termination. An isolated fault can justify a layoff without the need for a warning. Thus, the employer is free to choose the penalty according to the importance of the misconduct, i.e. its seriousness.
Themis Partner assists employees and employers in complying with Thai labor law. If you would like more information, please do not hesitate to contact us.