We often receive calls from employers who are dealing with employees who are not performing their duties to a standard reasonably expected or who are engaging in unsatisfactory workplace conduct despite efforts to manage their performance (e.g. through a performance improvement plan).
In many of these circumstances, we advise the employer that to issue the offending employee with a written warning which sets out clear expectations and consequences for the employee.
This article details the process employers should take when issuing an employee with a formal warning.
Step 1 – Identify the issues
Before discussing the matter with the employee, it is important that you identify the issues so that you can clearly articulate your concerns with the employee.
Does the issue relate to the employee’s performance or conduct? Has there been a breach of the employment contract or a policy? Has the employee failed to follow a reasonable and lawful direction?
If the issue relates to the employee’s duties, you should review the employee’s contract of employment, letter of offer and position description in order to confirm that the employee has been instructed to perform those duties.
Alternatively, if the issue relates to the employee’s conduct, you should review any workplace policies which might relate to such conduct. The policy may include a formal process which should be followed to address the issue.
It is important to record any times and dates that the employee has not performed or has engaged in unsatisfactory conduct. Particularly if the issue relates to the employee’s failure to follow directions.
It is not uncommon for employers to identify a combination of the above.
Step 2 – Investigate the issue
You should take steps to investigate the matter before you issue the employee with the warning letter. It is important to provide procedural fairness to the employee and have gathered all facts and evidence before proceeding to the formal warning stage.
This may even involve meeting with any employees involved to obtain their statements. If the issue was raised by a customer, if appropriate you may need to discuss the matter with the customer or review the complaint in detail.
It may even be necessary to have a preliminary discussion with the relevant employee.
Step 3 – Prepare a draft warning letter
Once you have completed the above steps, you should put the warning in writing.
If the issue is only a minor issue, a first warning should be sufficient.
However, if the issue is more serious, a first and final warning would be more appropriate. It is best to seek advice before deciding how best to proceed.
The main elements of a warning letter include:
- Details of the performance or conduct issue;
- Why the performance or conduct is unsatisfactory;
- If the issue involves a breach of contract or workplace policy, refer to the document and provide the employee with a copy;
- Details of expectations of the employee going forward and actions required by the employee;
- If appropriate, a timeframe for improvement; and
- Confirm that if the performance or conduct issue does not improve, disciplinary action may be taken against the employee up to and including termination of the employee’s employment.
Note: The above is a guide only and as warnings are regularly relied upon in the case of unfair dismissal applications, it is best to seek advice before attempting to draft your own warning letters.
Step 4 – Meet with the employee
Before issuing a written warning, you should arrange a meeting with the employee to discuss the issues and provide them with an opportunity to respond.
Agree on how to go forward including expectations on how performance and conduct issues will be managed, measures to be taken by the employee, review periods and expected outcomes.
Step 5 – Provide the written warning
Amend the draft warning letter as needed based on your meeting with the employee (e.g. after considering the employee’s response, you may find that the facts differ to what was inserted in the draft warning letter and need to be amended or you may agree upon additional measures or supports to address the performance and/or conduct issues that need to be inserted into the draft warning letter).
Once finalised, you can provide the employee with a copy of the warning letter after the meeting.
Note: Always ensure that you provide the employee with an opportunity to have a support person present at any disciplinary meeting.
Step 6 – Follow up
Once a warning letter has been issued, you should monitor the employee to ensure their performance or conduct has improved.
If a timeframe or review date was included in the warning letter, it is important that you have a review meeting with the employee in accordance with the letter. This will show that you are treating the matter seriously.
If the employee’s performance or conduct has not improved, further disciplinary action may be required up to and including termination of the employee’s employment.
For instance, a show cause process may be appropriate where the employee has not made any attempts to improve or has continued to perform poorly or engage in unsatisfactory conduct.
If the warning letter was a final warning and the employee has not improved, termination may be the next step. Before you proceed to termination, you should contact Employer Assist advice.
Employer Assist can provide advice and assistance with all employment matters, including warning, show cause, termination and other disciplinary processes.
Please contact Employer Assist on (07) 3376 6266 or firstname.lastname@example.org.
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