Employee Warnings & Dismissal: Myths vs. Reality
We often hear from employers that they are unsure of how to manage employee performance or behaviour when it comes to dismissal.
Complicating matters are a number of misconceptions surrounding these issues – some of which are based on common myths about employee warnings in Australia.
In this week’s Akyra blog, we unpack some of these myths, and provide clear advice on what actions you can take.
Common myths and misconceptions
So what are these myths and misconceptions? Here are a few key examples:
- The 3-warning Rule: It’s a myth that employers must give three warnings before dismissing an employee. The number of warnings depends on the severity of the issue and the attempts made to address it.
- Requirement to issue a written warning: Another myth is that a written warning is always required before termination. In cases of serious misconduct, immediate termination without prior warnings is possible (although not recommended).
- Indefinite validity: Warnings are not valid indefinitely. Generally, a warning issued more than 12 months ago is usually considered no longer be considered valid.
- Employee signature: An employee does not need to sign a warning letter for it to be valid.
- Verbal warnings: Verbal warnings can be sufficient if they meet the criteria of a formal warning; especially if it is confirmed in an email.
Understanding these myths can help both employers and employees navigate workplace issues more effectively.
The process for issuing warning letters
- Identify the Issue: Begin by clearly identifying the specific performance or behavior issue that needs to be addressed, such as underperformance, misconduct, or breaches of company policy.
- Schedule a Meeting: Arrange a meeting with the employee to discuss the issue. Provide them with advance notice of the meeting, including its purpose, and inform them that they may have a support person present. It is advisable to notify the employee of the meeting several hours before the scheduled time to allow them to arrange for a support person if desired.
- Record the Meeting: Consider recording the meeting using a mobile phone app, and inform the employee that a copy of the recording will be provided to them afterward. During the meeting, clearly explain the issue, specifying what the problem is and how it affects the workplace. Focus on the facts rather than the person or personal opinions.
- Allow for Employee Response: Ensure the employee has the opportunity to respond to the concerns raised. This allows them to present their perspective and provide any relevant information that might support their viewpoint.
- Conclude the Initial Meeting: After the employee has responded, thank them for attending the meeting. Inform them that management will follow up with the next steps within a specified timeframe, usually no less than an hour.
- Outline Next Steps: When you meet again to discuss the next steps, clearly outline the expected improvements and the timeframe within which these improvements should occur. Be explicit about the consequences if the performance or conduct does not improve. If the improvement is not up to the required standard, further disciplinary action, including dismissal, may occur.
- Provide a Written Warning: During this follow-up meeting, provide the employee with a written warning (or a first and final warning) that confirms the expected improvements discussed. The letter should also specify when a review will be conducted. Monitor the employee’s performance or conduct over the designated review period and arrange follow-up meetings to discuss progress and offer additional support if needed.
- Take Further Action if Necessary: If the employee’s performance or conduct does not improve, further disciplinary action may be required, such as additional warnings, a show-cause notice, or dismissal.
- Ensure Fairness and Consistency: Throughout the process, it’s important to handle the situation fairly and consistently, ensuring the employee understands the issues and has a reasonable opportunity to improve.
What is serious misconduct?
Serious misconduct is where an employee’s actions are wilful or deliberate and fundamentally breach the terms of their employment contract.
Here are some examples:
- Theft: stealing from the employer or co-workers.
- Fraud: engaging in deceptive practices for personal gain.
- Assault: physical violence or threats against co-workers or others in the workplace.
- Sexual harassment: unwanted or inappropriate sexual advances or behaviour.
- Intoxication at work: being under the influence of drugs or alcohol while on duty.
- Refusal to follow lawful instructions: not complying with reasonable and lawful directions from the employer/manager.
- Causing serious risk: actions that pose a serious and imminent risk to the health and safety of others or to the reputation, viability or profitability of the business.
These actions are considered serious because they undermine the trust and safety necessary for a productive work environment. If an employee engages in serious misconduct, it can lead to immediate termination without prior warnings.
Is immediate termination the only option for serious misconduct?
There are some important considerations and exceptions to immediate termination for serious misconduct:
Even in cases of serious misconduct, employers must follow a fair process. This includes giving the employee an opportunity to respond to the allegations before making a final decision.
The context and severity of the misconduct are crucial. What might be considered serious misconduct in one situation may not be in another. Employers need to assess whether the misconduct does justify immediate termination.
Employees should be allowed to have a support person present during meetings where serious misconduct is discussed.
Key takeaways
When it comes to warnings and dismissals, it is essential to closely follow the correct procedures and processes.
- Proper documentation of the misconduct and the process followed is essential – i.e. keep records of meetings, evidence and the employee’s responses.
- If the process is not followed correctly, the employee may have grounds for an unfair dismissal claim. The Fair Work Commission can order reinstatement or compensation if the dismissal is found to be harsh, unjust or unreasonable.
- Even if an employee is terminated for serious misconduct, they are still entitled to receive any outstanding payments for time worked, annual leave and sometimes long service leave.
- Following these guidelines helps ensure that the termination process is fair and legally compliant.
Akyra can provide your business with clear and actionable advice concerning employee warnings and dismissals. Contact us to book an obligation-free consultation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
