A reprimand given to a public or municipal employee is an act of administration and is bound by different rules and regulations. This chapter contains further information on this action.
If the authorities have not followed the correct procedures when reprimanding an employee a demand can be made that the decision be withdrawn, possobly after a court verdict. There are some examples where formal procedures have not been followed, for example when a reprimand has not been given in writing, and where the reason for the termination is unclear or the right to be heard has not been adhered to. There are also examples on limited content of the reprimand where authorities have not referred to specific rules broken or acts of behaviour serious enough to reprimanded.
As mentioned above a public employee cannot be terminated on grounds directly linked to him unless they have been reprimanded formally beforehand. Furthermore, the termination must be based on similar grounds as the reprimand given. In other words, a repeated action that the employee has been reprimanded on earlier. Otherwise the termination cannot be based on the given reprimand.
A reprimand is an act of administration and follows administrative law and are bound by the rules of procedure that are defined in the Administrative procedure act No. 37/1993 in addition to aforesaid provisions in act 70/1996 on government employees as well as clauses in the collective wage agreements when comes to municipal employees. These rules of administrative procedures are for example, the rule of law, the right to be heard, the rule of investigation and the principle of equality.
The employer can elect not to accept the work effort of an employee while they are being investigated. But the employer must fulfil other parts of the contract like paying wages. This action can only be taken when there is a strong suspicion that the employee being investigated might harm the investigation, or harm the workplace in some way. The employer has a legal duty to react quickly and conclude in the matter as quickly as possible.
It is a general understanding, in accordance case law, that public employers are allowed to make an employee on their trial period redundant without giving a reprimand even though the redundancy is based on bad performance. The trial period can be between three and six months according to collective agreements made by BSRB member unions.
In general, a temporary employment is not terminated during the period of the contract. A termination of a temporary work contract is only permitted when a clause has been added to the contract between the employer and employee. If the clause is in the contract the state has the same responsibilities towards the employee as if they had been indefinite employed. That means that an employer that wants to terminate a temporary employment based on behaviour of the employee must issue a formal reprimand before termination.
To reprimand someone is a serious act and needs to be carefully handled, specific in form and consistent, since it has legal effects and can be a necessary action taken before an employee is terminated. According to laws and collective agreements a reprimand must given in writing. An oral reproach is therefore not usable at a later date as a reason to terminate the employment of the employee involved. The importance of the written reproach is vital, so the employee understands how serious the matter is and the ground the reprimand is based on.
The purpose of a reprimand is to respond to a certain behaviour of a public servant and give them the opportunity to make amends for their actions. If they repeat its conduct and have already been given a reprimand this might lead to a termination. The obligation of the employer to prove that the accusations leveled against the employee are accurate.
There are different rules that apply to reprimanding a state or municipal employee. For state employees law applies but for municipal employees it is bound by the wage collective agreements. The clauses are in many ways similar, but they the differ on whether they apply both when at work and in the private life of the employee. For state employees the laws apply to both at and outside of the workplace, as seen in article 21 of the Government employees act:
For municipal employees the provision of reprimand only applies when at work:
Local authorities do therefore not have the authority to reprimand an employee or to terminate their employment based on actions outside the workplace unless there is an unequivocal clause on that in the collective agreements. If this is not the case a termination might be unlawful. In addition, there is the administrative procedures act, no. 37/1993, and some clauses from the act have added and defined in the collective wage agreements.
Terminations that are not directly linked to actions taken by the employee, for example restructuring of the workplace or a general reduction of the number of employees are an exception to this rule. Under those circumstances it is not necessary to reprimand the employee beforehand to make the termination legal.