05 August 19 - In the News
Authors: Jaclyn Paltos
Publication: Seek Employer Blog
Publication date: 5/08/19
So, when should you issue a warning, and how do you put it into writing? We asked experts in workplace law and HR to share their best practice tips on formal written warnings.
Why issue a formal warning?
A formal warning is a letter that sits on an employee’s file for future reference. It outlines performance or misconduct concerns and an action plan of what the employee needs to do to improve.
It’s one step in dealing with performance issues—and it shouldn’t be the first, according to Alex Hattingh, Chief People Officer at Employment Hero. “The number one rule regarding formal written warnings is that they should never be a surprise to an employee,” she says. Performance issues should be flagged during regular one-on-one meetings and written warnings should happen after other avenues have been pursued.
Charles Power, Workplace Relations & Safety partner at Holding Redlich agrees and says a formal written warning is the essence of fair performance management. “It’s very difficult to defend your organisation against an unfair dismissal claim without it,” he says. “You need to show you have conveyed to an employee that their ongoing employment is in jeopardy if they don’t adequately address the underperformance.”
Taking an informal warning to the next step
Before issuing a formal written warning, you should try to resolve the issue verbally with an informal warning to advise the employee they aren’t meeting the expectations of their role, Hattingh says. While this isn’t written, you do need to detail the specific areas of underperformance.
Keep a management note or email your employee following a verbal discussion to make sure everything was clear, Hattingh advises. “By doing this, you are also ensuring you have a written record that you have discussed what areas need to be improved,” she says.
If verbal warnings don’t garner any changes, you may want to move on to the formal written warning process.
What should a formal written warning include?
A formal warning should be in the form of a letter to the employee. Hattingh says when writing the letter, you should:
Reference your verbal conversation and warnings and include all key dates.
It’s also best to set up a meeting with the employee to discuss the warning. “You should always discuss the specifics of the written warning letter with your employee prior to physically delivering it as it allows them to ask questions and clarify any issues or concerns before they receive and review it in writing,” Hattingh says.
“Best practice is to offer your employee an Employee Assistance Program resource which supports them with a professional confidential advisory support line,” she adds.
Click here for a user-friendly warning letter template developed by Employment Hero.
Formal written warnings and the law
Not everyone is covered by unfair dismissal laws and if you’re dealing with an employee who isn’t covered by those laws, warnings are not usually required.
To ascertain whether an employee is covered, visit the Fair Work Commission website.
In general, though, while there’s no legal requirement to provide a formal written warning before termination, an employee can claim unfair dismissal if they haven’t been given fair warning and an adequate period of time to improve their performance.
According to Power, unless specified, the old rule of a mandatory three warnings no longer applies. “The appropriate number of warnings comes down to what is fair having regard to the nature and seriousness of the underperformance and what progress the employee is making to address the issue,” he says.
Power says employers need to provide tangible examples of how employees aren’t meeting the expectations of their role. He says the employee doesn’t have to agree with the issues (or even sign the letter) but should listen carefully to the reasons given by the employee for their underperformance.
Misconduct is another area that can be confusing to manage. But a warning isn’t essential for fair dismissal by reason of misconduct, Power says.
“If it’s serious enough and you have given the employee a chance to say why they shouldn’t be dismissed for it, then you can dismiss for that reason,” he says.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.