A Prac­ti­cal Guide to Warn­ings in the Workplace

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What is a work­place warning?

A warn­ing is a com­mu­ni­ca­tion be it ver­bal (more infor­mal) or writ­ten (more for­mal) to an employ­ee about their per­for­mance or con­duct at work. They are a mech­a­nism for com­mu­ni­cat­ing an iden­ti­fied area where an employ­ee needs improve­ment, or where con­duct does not meet the req­ui­site stan­dard. The aim is to improve employ­ee per­for­mance or conduct.

The per­for­mance or con­duct issues which would be the sub­ject of a warn­ing are usu­al­ly of a less seri­ous nature. That is, they do not war­rant sum­ma­ry dis­missal. Ver­bal warn­ings gen­er­al­ly pre­cede writ­ten warn­ings. Usu­al­ly, once a warn­ing is issued, the employ­ee’s per­for­mance or con­duct is mon­i­tored for a set peri­od of time.

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Con­tent of a writ­ten warning

A writ­ten warn­ing should fol­low a warn­ing meet­ing, at the con­clu­sion of which, the employ­ee is advised that a writ­ten warn­ing let­ter will fol­low. The warn­ing let­ter should fol­low in a day or so post the meet­ing. It is sug­gest­ed that a writ­ten warn­ing should:

• record who was present;
• record the fact the employ­ee was invit­ed to have a sup­port per­son present (if they did not avail them­selves of this opportunity);
• out­line the con­duct or per­for­mance which is the sub­ject of the warning;
• where appro­pri­ate refer to a rel­e­vant pol­i­cy or the employ­ment contract;
• where rel­e­vant refer to pre­vi­ous warn­ings given;
• record the employ­ee’s respons­es to the mat­ters in issue;
• records the things which need to hap­pen to address the per­for­mance or con­duct in question;
• make it clear that the employ­ee needs to improve, includ­ing explain­ing the con­se­quences of a rep­e­ti­tion of the con­duct or fail­ure to improve, which could for exam­ple result in termination;
• where rel­e­vant pro­vide sup­port for the employ­ee to improve (this can involve the offer of fur­ther training);
• where rel­e­vant, pro­vide a timetable for peri­od­ic review of the employ­ee’s performance;
• pro­vide a clear paper trail should things not improve and ter­mi­na­tion result; and
• prefer­ably be coun­ter­signed by the employ­ee to evi­dence receipt of the warning.

How many warn­ings should employ­ers give pri­or to a termination?

There is no legal require­ment to give any set num­ber of warn­ings pri­or to ter­mi­na­tion, although the Small Busi­ness Fair Dis­missal Code made pur­suant to the Act, requires one writ­ten or ver­bal warn­ing to be giv­en by ​“Small Busi­ness­es” (employ­ers hav­ing less than 15 employ­ees) except in rela­tion to those mat­ters jus­ti­fy­ing sum­ma­ry termination.

The unspo­ken rule is to use any­thing from one to three writ­ten warn­ings pri­or to any ter­mi­na­tion. As gen­er­al guid­ance, two writ­ten warn­ings should place an employ­er in a strong posi­tion to act deci­sive­ly if the con­duct con­tin­ues, or the per­for­mance does not improve. How­ev­er a word of warn­ing, if employ­ers have for­malised their own per­for­mance man­age­ment pro­ce­dures into a pol­i­cy, then they need to ensure that they com­ply with it, oth­er­wise they may be leav­ing them­selves open to the sug­ges­tion that they are in breach of their own pol­i­cy. It is worth not­ing that the terms of a pol­i­cy may be regard­ed as con­trac­tu­al terms.

Process has an increas­ing­ly impor­tant place in employ­ment law because of claims for unfair dis­missal. It is part­ly for this rea­son that sup­port per­sons are offered to employ­ees, that meet­ings are clear­ly doc­u­ment­ed and clear and unam­bigu­ous writ­ten warn­ings are issued.

It is also wise to con­sid­er the seri­ous­ness of the con­duct or per­for­mance issues when decid­ing how many warn­ings should pre­cede any ter­mi­na­tion. Two warn­ings for minor per­for­mance or con­duct issues might still mean any result­ing ter­mi­na­tion is unfair, where­as repeat con­duct fol­low­ing one warn­ing con­cern­ing a seri­ous con­duct or per­for­mance issue can be suf­fi­cient to result in a fair termination.

There can be advan­tages for employ­ers in labelling a warn­ing ​“Final Warn­ing” in appro­pri­ate cir­cum­stances, but what is more impor­tant is that the let­ter itself advis­es as to the con­se­quences of non compliance.

How long does a warn­ing remain current?

Again there is no hard and fast rule, how­ev­er it would gen­er­al­ly be unusu­al for a warn­ing to remain cur­rent after six months had passed with no warn­ings in between. This is espe­cial­ly rel­e­vant in seek­ing to rely on pri­or warn­ings in effect­ing ter­mi­na­tion. On the oth­er hand, his­tor­i­cal warn­ings from years past may be exam­ined and con­sid­ered rel­e­vant in court pro­ceed­ings con­cern­ing ter­mi­na­tion. It will depend on the nature of the pre­vi­ous warn­ings, and the con­text sur­round­ing the termination.

One easy way to attempt to give warn­ings a longer life is to incor­po­rate some sort of mon­i­tor­ing mech­a­nism and peri­od into the warn­ings. If for instance the warn­ing says, ​“we will mon­i­tor your conduct/​performance for a peri­od of six months after the date of this warn­ing let­ter” then this cre­ates an expec­ta­tion that the warn­ing has at least six months currency.

What to take away?

Warn­ings are impor­tant work­place tools to help ensure employ­ees under­stand an employ­er’s expec­ta­tions. They are evi­dence of a fair per­for­mance man­age­ment process and they sup­port deci­sions made to ter­mi­nate. Ulti­mate­ly they may play a cru­cial role in defend­ing unfair dis­missal claims. Impor­tant­ly a fail­ure to imple­ment or appro­pri­ate­ly man­age or doc­u­ment warn­ings can come at a high price.

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