Warning letters

 
Warning letters are useful to confirm and address a performance or conduct issue with an employee. These letters are usually issued to an employee after you have had a meeting with them to discuss the problem at hand. Following the process of issuing a warning letter can help resolve issues before the situation escalates. 

There is no legal requirement to provide formal written warnings or a certain number of warnings, however, to determine whether an employee was unfairly dismissed, the Fair Work Commission will consider if the employee was:

• warned about performance or conduct issues, and 
• provided a reasonable opportunity to improve their performance and conduct. 

Of course, in some cases, warnings may not be appropriate for cases of serious misconduct where dismissal is the appropriate outcome. For practices with under 15 employees, you must follow the Small Business Fair Dismissal Code when considering an employee dismissal. This code outlines the requirements to be taken to prevent claims being made against the employer. 

We have provided some helpful steps and inclusions when preparing a warning letter.

Step 1: Identify and consider the problem
Clearly identify the performance or conduct issue. Consider how serious the conduct issue is, how long it has existed and what actions you are going to take to address it. 

Step 2: Meet with the employee
It is best practice to let the employee know the purpose of the meeting in advance so they can adequately prepare. It is also important that during this stage the employee is offered an opportunity to be accompanied by a support person. This is required as when the Fair Work Commission consider unfair dismissals, they look at whether an employer has unreasonably refused to allow an employee to have a support person at any discussion relating to their dismissal. In general, these meetings are important for:

• identifying and resolving issues before the situation becomes worse
• clarifying your expectations, and
• agreeing on solutions to improve the situation.

When setting requirements and/or targets to measure improvement, these must not be discriminatory, unlawful or unreasonable. They need to be attainable and realistic. These agreements and details of the meeting should be kept on record. 

Step 3: Create your letter of warning
The warning letter should be issued in writing and include the following information:

• Details of the performance or conduct issue of concern. 
  • You should be clear and specific on all the details of the incident and why the warning has been issued. Include the date of the incident (if one has occurred), what was said and their actions. 
• Outline the processes and discussions that have already taken place 
  • Include quotes of what the employee said when they gave their reasons for their behaviour/misconduct and explain that you made them aware that misconduct or behaviour of this nature would lead to disciplinary actions. 
• Clearly set the expectations moving forward 
  • This section should be quite detailed. An example of this may be that the employee needs to comply with the policies and procedures or codes of conduct, they must be respectful towards their colleagues (if behavioural), show professionalism etc. 
  • Discuss what you will do to assist them moving forward
• Explain how this warning is fair and reasonable
  • Draw information from your code of conduct that pays reference to their expectations in behaviours and why this has led to disciplinary action. 
• Clearly state the outcome moving forward 
  • Explain that if similar behaviour continues, then further disciplinary action, up to and including termination may occur. Be sure to also outline the timeframe in which the changes or improvements need to occur. 

Ensure the employee receives the letter and make sure you document the details of providing the letter (e.g. the time, date, who was there, what was said etc.). It is important the employee reads and understands this letter. Depending on the circumstances you could ask the employee to sign a copy of the letter and return it to you, or you could follow up with the employee to make sure they received it and keep a note that you did this.

You should never pre-write the warning letter for any staff member before commencing a meeting with your employees. This will take away the employees right of an opportunity to respond as this process should give the employee a chance to have the outcome of their misconduct re-considered. It is possible that by pre-writing the letter you may have pre-determined the outcome of the meeting which would be enough to satisfy the proceedings of an unfair dismissal claim, if the disciplinary process actions lead to future terminations.