A shop assistant turns up late three times a week, and you have already shouted twice without writing anything down. The day you want to part ways, those two arguments will be worth nothing at all. A warning is not a way of getting something off your chest: it is the first rung of a ladder that article 37 of the Labour Code sets out in a fixed order, and that has to be climbed rung by rung for the dismissal at the top of it to be considered justified. Skipping a rung weakens your own file, not the employee’s.
Five things to remember
- Article 37 sets out four sanctions in order: the warning, the reprimand, a second reprimand or suspension, a third reprimand or a transfer.
- Suspension may not exceed 8 days, and a transfer must take the employee’s place of residence into account.
- Article 38 requires sanctions to be applied gradually: it is that gradualism that gives each written document its value.
- Once the sanctions are exhausted within the year, the dismissal is considered justified: the ladder ends up protecting the employer who followed it.
- The article 62 hearing does not apply to a simple warning: it attaches to the third and fourth sanctions and to dismissal.
1. The article 37 ladder, in order
For misconduct that is not gross, the employer does not freely pick a sanction from an open list: the Labour Code sets them out in an order, and that order is part of the rule itself. Here are the four rungs, and the point at which the hearing procedure comes into play.
| Rung | Sanction under article 37 | Article 62 hearing |
|---|---|---|
| 1 | The warning | Not required |
| 2 | The reprimand | Not required |
| 3 | A second reprimand, or suspension of no more than 8 days | Required |
| 4 | A third reprimand, or transfer to another service or establishment | Required |
| — | Dismissal, once the ladder is exhausted within the year | Required |
Two limits are written into the text itself and can be checked at a glance. Suspension does not exceed eight days, whatever the misconduct. And a transfer to another service or establishment must take the employee’s place of residence into account: moving somebody to the far side of the city to make them crack is not a disciplinary sanction, it is a file that will turn against you.
These sanctions cover misconduct that is not classed as gross. Gross misconduct has its own regime, and that is not the subject of this article: what we are talking about here is repeated lateness, a till discrepancy, the tone used with a customer — everything that is not heavy enough to justify an immediate departure but too heavy to let pass.
2. Why gradualism protects you
Article 38 says two things in a single sentence, and the second is the one most employers have never registered. First, the employer applies disciplinary sanctions gradually. Second, once those sanctions have been exhausted within the year, the employer may dismiss, and the dismissal is then considered justified.
- A first act is established: you notify a written warning carrying a clear date.
- The act recurs: you notify a reprimand, recalling the earlier warning and its content.
- It recurs again: a second reprimand or a suspension, this time after a hearing.
- It recurs once more: a third reprimand or a transfer, again after a hearing.
- The ladder is exhausted within the year: the dismissal is considered justified.
Read that last line again. It is not leniency, it is a construction. Every document you produce today is a piece of the file that will make your decision defensible tomorrow. The employer who shouts for a year without writing anything arrives before a judge empty-handed; the one who notified four dated sanctions arrives with a complete ladder. The second is not harsher than the first, he is simply within the rules.
Conversely, skipping rungs breaks the construction. Going straight to suspension for lateness means taking a disproportionate sanction without having laid the first steps, and it hands the employee the simplest possible argument.
3. What the warning must contain
A useful warning fits on one page and contains no opinion at all. It describes dated facts, it states what is expected, and it leaves a verifiable trace of its delivery. Anything that reads as a judgement on the person weakens the document rather than strengthening it.
- A fact, a date, a time: “35 minutes late on Tuesday 3 March, starting work at 9.35 for a 9.00 opening.” Not “you are always late.” A fact with a date on it can be proved or contested; a general complaint can be neither of those things.
- The evidence, cited and kept: The attendance sheet, the till journal, the discrepancy recorded and its amount, a written customer complaint. Name the document in the letter and file it with the copy of the warning.
- Its rung on the ladder: State that this is a warning within the meaning of article 37, and recall any sanctions already notified. That reminder is what makes the gradualism legible to anyone reading the file.
- What you expect from now on: One precise, verifiable sentence: starting work on time, counting the till at the end of the shift, following the payment procedure.
- Delivery, with a trace: Handed over in person against a signed and dated receipt, or sent by registered letter with acknowledgement of receipt. A warning you cannot prove you delivered does not exist.
Keep the signed original in the employee’s file, alongside the contract and the other individual documents: that is where the disciplinary history builds up, month after month. The employee file has no other purpose on the day somebody asks you to justify a decision.
An oral warning is worth nothing on the day it counts
This is the most costly mistake, and it is almost always made in good faith. You spoke to the employee, they understood, the matter seemed settled: you wrote nothing down. Two years later you dismiss, and you are asked to show that the sanctions were applied gradually and then exhausted within the year. You have no date, no described fact, no signed receipt. Since the burden of proof is on you, the file is empty, and a dismissal that is perfectly sound on the substance becomes indefensible on the form.
4. The article 62 hearing and the article 63 notification
From the third rung onwards, writing alone is no longer enough: an adversarial procedure is required before the decision. It applies to the third and fourth sanctions and to dismissal, and it does not apply to a simple warning.
- The employee must be able to defend themselves and be heard before the sanction is taken.
- They are heard in the presence of a staff delegate or union representative whom they choose.
- The hearing takes place within a period of 8 days from the alleged act being established.
- A procès-verbal is drawn up by the company, signed by both parties, and a copy given to the employee.
- If either party refuses to begin or continue the procedure, the labour inspector is called in.
The choice of delegate belongs to the employee, not to you: imposing a companion on them vitiates the hearing. And the procès-verbal is not one more piece of administrative form-filling, it is the only proof that the hearing took place and that the employee was able to speak at it.
Then comes article 63: the decision is handed to the employee in person against receipt, or sent by registered letter with acknowledgement of receipt, within 48 hours of being taken. The same article lays down the rule that governs everything else: the burden of justifying a dismissal falls on the employer. You are the one who will have to produce the written record, not the employee who has to prove their innocence.
Mistakes to avoid
- Writing “unacceptable behaviour” instead of describing the act, its date and its time.
- Skipping rungs and punishing lateness with a suspension without any prior warning.
- Imposing a suspension of more than 8 days, which the Labour Code does not allow.
- Handing over the warning with no signed receipt and no registered letter, so with no proof of delivery.
- Imposing on the employee the delegate who assists them at the hearing instead of letting them choose.
- Notifying the decision beyond the 48-hour deadline set by article 63.
Frequently asked questions
Is an oral warning worth anything?
In practice, nothing on the day you have to prove something. The burden of justifying a dismissal falls on the employer, and a conversation cannot be proved. Write it down, date it, describe the fact and have a receipt signed: it takes ten minutes, and two years later it is worth the whole file.
Must I hear the employee before a simple warning?
The hearing set out in article 62 attaches to the third and fourth sanctions on the ladder and to dismissal, not to the warning. Nothing stops you from listening to the employee before you write, though: that is often how you discover that there is an explanation for what happened.
How long is a suspension allowed to last?
Eight days at most, however serious the breach. That limit is written into article 37 and is not open to negotiation in any form. A longer suspension is an irregular sanction, even if the employee accepted it at the time without objecting.
After how many sanctions can I dismiss?
Article 38 thinks in terms of a ladder exhausted, not a free counter: once the article 37 sanctions have been applied gradually and exhausted within the year, the employer may dismiss and the dismissal is considered justified. Each rung has to be notified and proved.
What to take away
Treat the first warning as the first page of a file, not as a release of anger. One page, dated facts, the document that proves them, a signed receipt, and all of it filed in the employee’s records. Then climb the rungs in order and skip none: it is exactly that discipline which, on the day you do have to dismiss, will make your decision be considered justified.
Sources
The figures and rules quoted above come from these pages, read on the date given in the article.
Prove the fact, before you write the letter
A till discrepancy or an unusual discount cannot be argued from memory: BelloPOS keeps sales detail by user, and the activity log in the Go licence traces who did what and when, offline, on your own machine.
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