The Higher Labour Court Cologne (Landesarbeitsgericht Köln) decided on 20.09.2016 (12 Sa 381/16) that a warning cannot be considered as illegal on the ground that it is disproportionate because the employer should have given an admonition as a milder sanction first.

The parties are in dispute about the legal validity of a warning.

The plaintiff has been employed by the defendant as a truck driver since July 2003. On the 22.04.2015, the plaintiff then had to deliver glass to a customer with an inside loader. The inside loader is equipped with an additional stopper beam which is to be attached with different tape measures to the rack for additional protection of the glass. Usually, the glass is transported openly in the racks. However, for this delivery it was packed in foil or paper. The plaintiff did not attach the stopper beam before transport. On arrival at the customer the glass had broken in one of five packages. As a result the defendant gave a warning to the plaintiff on the 27.04.2016.

The Highler Labour Court Cologne considered the warning legal. If the plaintiff has to supervise the loading and unloading of his truck, he has to perform that supervisory function effectively and in full. If there are uncertainties as to whether different tape measures are given or not, it is correct in case of doubt to lay the additional stopper beam to the rack as a precaution, particularly as this only means manageable additional work. The plaintiff’s action was a minor case of negligent omission. The defendant did not have to issue an admonition first as a milder sanction. The employer is entitled to decide independently whether he wants to disapprove of a case of employee misconduct and caution so. The warning can only fulfil its warning function if the employer is entitled to react to minor violations of contractual obligations with the declaration of a warning. An admonition (without a warning function) can be applied as a preliminary stage to a warning as a sort of graded “sanction system”. Nevertheless, there is no legal obligation to do so.