Did you get a letter of reprimand? What does it mean and when are you at risk of being dismissed?

Quick overview

• A letter of reprimand is not the same as a statement.
• For unsatisfactory performance, your employer must give you a chance to correct the deficiencies.
• A dismissal for unsatisfactory performance can come within 12 months of the written notice.
• When it comes to misconduct, the employer must correctly distinguish between seriousness and repetition of misconduct.
• It is advisable to disagree in writing with the letter if it contains untruths, general criticisms or unfulfillable demands.

If you are not sure whether a letter of reproach is justified, do not wait to be dismissed. Our attorneys can help you evaluate the letter, prepare a response to your employer, and check to see if you are indeed facing a valid termination.

Unsatisfactory performance as a reason for termination

One of the reasons an employer may terminate an employee is unsatisfactory performance. These are characterised by the fact that although the employee is not in breach of any of his or her duties, the work is not delivering what the employer expects from the employee.

However, it should of course be stressed that not every situation where an employee fails to meet the employer’s expectations constitutes unsatisfactory performance which may lead to dismissal. The employer’s requirements must always be reasonable and correspond to the reality of the employee’s situation.

Content of the letter of reproach

The content of a letter of reprimand is therefore primarily to inform the worker concerned of a breach of the law, work discipline or poor work performance.

If your employer accuses you of failing to meet performance targets that you believe are completely unrealistic, we recommend that you compare your own performance with that of other colleagues. If even they fall far short of the desired targets, the problem is probably more likely to be with the employer, who is demanding the unachievable.

Case in point: A client worked as a sales representative and received a letter of reprimand for not meeting monthly sales targets. After a follow-up, it turned out that her employer had assigned her a significantly smaller and less creditworthy region than other colleagues, yet rated her on the same numbers. We advised her to prepare a written statement, document the comparison of assignments, and ask the employer to set objective goals. This avoided premature termination and established an evidentiary basis for any further litigation.

Attention should also be paid to the system of work allocation – if the employer distributes the orders among individual brokers and you receive the least or only those with low profitability, you can hardly meet the performance criteria.

We know from experience that the problem is often not the letter of reproach itself, but its generality. For example, the employer writes that the employee has “failed to meet expectations over a long period of time” but does not include specific time periods, measurable goals, comparisons with others, or how the employee is to correct the deficiencies. Such a letter may then provide a weak basis for a later termination.

If your employer accuses you of failing to meet goals that you believe could not be met, we recommend addressing the situation in writing and with evidence. We can help you prepare a response to the letter of reproach that is factual, legally accurate and applicable to any dispute over the invalidity of the termination.

However, a letter of reprimand should only follow if the employee has breached the duties of his or her job at least three times. If the employee has not complied with the legal requirements for the performance of the agreed work in the last 12 months and, despite written warnings from his or her supervisor, his or her performance and work discipline have not improved during that time, he or she may be dismissed by the employer for that reason.

You may be entitled to severance pay

If you are making less profit for your employer because of an overall decline in business or because they are not giving you enough opportunities, you cannot be terminated for unsatisfactory performance. At most, the employer could consider eliminating your position. In that case, they would have to give you a severance package when you are dismissed for redundancy.

When criticisms are justified

However, if you are objectively behind in your work, a letter of reproach may well be in order. In this case, your employer must ask you to remedy the deficiencies in the letter of reproach and give you a reasonable period of time to improve your performance. At the same time, it would be appropriate for the employer to give you reasonable assistance and support in your development (for example, by paying for training).

Not every reprimand is bullying or unlawful. In practice, we also encounter situations where an employee has not really been doing the job for a long time, but the employer still needs to be fair: describe the specific shortcomings, give reasonable time to improve and ideally offer support, such as training or clearer assignments.

Have you not improved? You are at risk of dismissal

If your performance doesn’t improve after the deadline (or if it improves only in the short term), your employer can dismiss you on two months’ notice without pay. However, you can givenotice up to 12 months after you receive the letter of reprimand. If your employer decides after 12 months, it must first give you a new letter of reprimand and give you time to improve. Only then can it proceed with the notice.

Once the letter of reprimand is followed by a notice of termination, the short time limits for defending yourself run. Have your notice reviewed as soon as possible – we will assess whether the employer has followed the legal procedure and whether it makes sense to defend the notice by bringing a claim for unfair dismissal.

What are the defence options?

What if the situation is completely different and you disagree with the content of the letter of reproach. Can you defend yourself? Simply not receiving the letter does not mean anything. The document is still registered as having been delivered and therefore valid, even if there is a lawsuit.

However, if an employee has been dismissed for a breach of workplace law and has not received a letter of reprimand, he or she may seek assistance from the administrative authority. In such a case, the dismissal would be null and void as the conditions laid down in the Labour Code have not been met.

Checklist: What to do after receiving a letter of reprimand

• Read the letter in full and check the date of delivery.
• Do not sign an agreement to the contents if you do not agree with the criticisms.
• Write down which points are untrue, general or inaccurate.
• Keep emails, work results, shifts, assignments, and communications with your supervisor.
• If you want to respond, do so in writing and factually.
• If a letter is followed by a termination letter, address it immediately – time limits run with legal defenses.

Summary

A letter of reprimand is not automatically a termination, but it can be an important step in getting it later. In it, your employer must be specific about what it is criticising you for and, if it is unsatisfactory performance, give you a reasonable time to put things right. Notice for this reason can come within 12 months of the written notice. In the case of repeated misconduct, on the other hand, the seriousness and frequency of the misconduct is assessed and the employee must be given timely notice of the possibility of dismissal. If you disagree with the letter, it is advisable to respond in writing, keep the evidence and have the employer check whether it is following the Labour Code.