In circumstances where the employer decides that the employee misconduct is not serious, or where the employer otherwise decides not to dismiss, the employer may decide to give the employee a warning. This can be written or verbal. It is recommended that all warnings be recorded in writing so that there are no misunderstandings.
A warning is given to let the employee know that their conduct or performance is not satisfactory and that there is a possibility of dismissal if their conduct or performance is repeated. It is important that a warning is clear enough that the employee knows that if they repeat the behaviour, or their performance does not improve, then their ongoing employment is at risk. The warning should:
- make it clear that it is a warning
- say what will happen if the change or improvement does not take place
- be communicated clearly
- be understood by the employee
- be reasonable (in proportion with the action)
- give a reasonable time to improve, if it relates to performance.
Check the employment agreement, workplace policies and procedures to see if any of these may state that the process or type of warnings (written or verbal) are needed. The type of warnings needed may be different at different stages of the process and in different circumstances.
A final warning should be in writing, unless there is a different process set out in the employment agreement.
If an employee has had warnings previously, the employer may be able to:
- dismiss the employee, or
- give a further or final warning.
A previous warning or warnings do not always justify dismissal or a final warning. For example:
- a warning for one type of misconduct cannot be relied upon when dealing with another type of misconduct
- if a warning is too old, it may be unfair for an employer to rely on it.
A warning cannot be relied on forever. Warnings should state how long they are for eg six months or one year. Even if there isn’t a length of time stated, after a certain time the warning may have expired and the employer may not be able to rely on it as a basis for a future action. Each case will depend on its own facts. There is a general rule that it may be challenging for an employer to rely on a warning that is over 12 months old.
Depending on the facts, there may be a few exceptions to the rule that employers cannot rely on expired warnings. Employers may be able to take into account:
- a recently lapsed final warning, or
- an expired warning, if this is not the only factor being considered.
Usually warnings that are for different behaviours or actions should not be relied on if an employee is in a disciplinary process for a different type of behaviour.
In some cases, the employer may rely on an unrelated warning where the action by the employee is similar enough to a previous warning/s. However, care should be taken and if any past warning or warnings are to be given, the employee should be given the opportunity to comment on why the previous incident should not count against them.