When it comes to performance management, issuing a written warning to an employee can be a challenging step for employers.
It can sometimes be difficult to know when an employee’s performance and/or conduct warrants this type of disciplinary action, and a lack of clarity or fairness within a written warning can cause potential problems for employers.
So what should employers know about issuing written warnings to employees?
The nature of written warnings
As the team at Jewell Hancock explains, “a written warning is a document issued by an employer to an employee indicating that the employee is at risk of dismissal due to unsatisfactory performance or conduct.”
The reasons behind issuing such a warning can vary quite significantly. A warning may relate to matters of employee performance – e.g. when an employee isn’t doing their job properly (performance management) or is engaging in unacceptable behaviour in the workplace (disciplinary action).
It can also relate to serious misconduct – e.g. if an employee’s actions causes a clear risk to the health and safety of others or to the business itself.
A written warning is a serious matter and may be used by employers to justify the dismissal of an employee.
When are written warnings appropriate?
As Fair Work Australia explains, a disciplinary action such as written warnings should be carefully considered.
Before a warning is issued, employers need to make sure that:
- There is a valid reason for the warning
- That a fair process is follows
- They have considered seeking independent advice on the matter
A written warning should also clearly communicate to the employee in question that “their continued employment is at risk unless their performance or conduct improves”.
While the Fair Work Commission (FWC) explains that “there is no legislative requirement specifying an employee must be given a certain number of written warnings before being dismissed for poor performance or misconduct”, employers should be careful to give workers the opportunity to respond to the concerns of their employer and improve their performance or behaviour in a reasonable timeframe.
Can written warnings cause problems for employers?
Even where a written warning is issued to an employee prior to their dismissal, a worker may choose to file an unfair dismissal claim.
An unfair dismissal claim has more likelihood of success if an employer has not been clear on the reasons for the warning or has not given the employee a reasonable period of time to improve their performance or change their behaviour.
When ruling on an unfair dismissal claim, the FWC is likely consider several factors – e.g.
- the reasoning behind a warning and/or dismissal
- the amount of time between a warning being issued and an employee being dismissed – e.g. whether the employee had sufficient time to address or rectify the concerns which prompted the warning
- if the employer has issued the warning for an unlawful reason
- if the warning “is part of a general pattern of workplace bullying”
Rulings from the FWC demonstrate the need for employers to carefully consider how they approach and issue warnings to employees, particularly if this may lead to dismissal.
The FWC has upheld unfair dismissal claims in several cases where dismissal followed the formal warnings.
Some examples include cases where:
- employees were dismissed following inconsistent application of warnings issued by an employer,
- written warnings were found to be a ‘mechanical process’ with a pre-determined outcome, and
- an employer violated an enterprise agreement by not following the correct procedures before issuing a warning.
Akyra’s Key Takeaways
- An employer may issue a written warning to an employee due to underperformance or workplace misconduct
- When issuing a written warning to an employee, it is critical to be clear about the reasons for this warning; to provide direction on how the problem can be remedied by the employee; and to clearly communicate the implications of the warning – e.g. employment may be in jeopardy
- A lack of clarity or fairness when issuing a written warning may lead to challenges for employers in relation to unfair dismissal claims if the employee in question is dismissed.
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to disciplinary actions in the workplace, including written warnings. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
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.
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https://www.fwc.gov.au/warnings-unsatisfactory-performance, https://www.jhel.com.au/can-employees-challenge-a-written-warning/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration, https://www.fairwork.gov.au/employment-conditions/performance-in-the-workplace, https://www.fairworkclaims.com.au/services/written-warnings/