Different Types of Warning Letters

There is no magic number of how many warnings an employee must receive before their employment can be terminated. A common misconception is that three warnings is the upper limit before termination procedures can be followed, however, there is no legislative requirement which reflects this. What employers do need to be mindful of is the risk of unfair dismissal claims being made by employees who feel that they were not sufficiently warned about their underperformance and received no opportunity to improve or respond before being terminated.

Some key points to note:

• Generally speaking, warnings will not remain “alive” forever. Depending on the severity of conduct which triggered the warning being given, they will typically lose relevance once an employee has demonstrated improvement for a consistent amount of time. A good guide is six months’ before expiration. This will of course depend on severity of the triggering conduct and may be more or less time.
• Warnings should always be documented. Even where a verbal warning is a verbal, it is best to make a note of this having taken place. This will help prove reasonableness if a subsequent termination decision is challenged and relates to an employee being afforded procedural fairness.
• Warning’s needs to detail the type of underperformance with specificity and identify a timeframe for expected improvement. At the expiration of this time period the employees performance should be reviewed and further discipline be considered where appropriate. In addition to this, employees should also be advised of possible outcomes if their performance does not improve, e.g. further disciplinary action or potential termination.
• Employees should sign a receipt or acknowledgment of receiving a warning; however, it is generally inconsequential if an employee refuses to do so. Where an employee does refuse, they should still be issued with a copy and a record be kept on their HR file / personnel file.
• The process for issuing warnings should be detailed in a company’s policy and procedure documents and/or in an employee’s contract of employment or other industrial instrument.

VERBAL WARNINGS

Verbal warnings are appropriate when an employee first starts showing signs of underperformance, or where the conduct is such that it does not warrant a formal performance management process, but still requires addressing. The employee’s direct supervisor should issue the verbal warning and is best accompanied by an informal performance management process. The aim is for performance improvement, so an informal performance management process allows a supervisor to inform their subordinate of the performance gap, and ways to correct it. Further counselling, training or access to the employers Employee Assistance Program (EAP) may also be necessary depending on the nature of the underperformance and the cause.

Although oral in nature, verbal warnings should still be documented as being issued. This will assist employers if an employee makes any claims for unfair treatment in the future.

FIRST WRITTEN WARNINGS

A first written warning is appropriate in a number of instances. These include; where a previous verbal warning has been issued for a minor problem and the employee has not improved their performance, or where an employee has not previously been warned but their behaviour / underperformance is such that a written warning is deemed necessary.

Ideally a written warning will be issued in conjunction with a formal performance management process being followed. This will give the employee an opportunity to respond to the underperformance issues and work with their manager to jointly seek a solution to the problem.

The written warning should contain the following details:

• What the underperformance / misconduct issue is and the corrective action required;
• What action will be taken if the employee does not improve their behaviour;
• Detail previous warning and date of issue;
• Details and signatures of those present at the formal performance management meeting; and
• Dates for performance to be re-evaluated.

A performance Improvement Plan may also be issued with the first written warning.

FINAL WRITTEN WARNINGS

The number of warnings issued before an employee can be dismissed will depend on the severity of the underperformance, behaviour or misconduct complained of and whether any improvement has been noticed. In some circumstances a final written warning may be the first warning which is issued to an employee if the circumstances are serious enough. Conversely, employers may choose to issue a final written warning to an employee instead of dismissing them where they have shown considerable improvement but still fall short of the desired performance standard. It is inadvisable to issue repeated final warnings, however the situation needs to assessed on the facts.