Written Warnings
What must you do when considering giving or have been given a written warning?
Are you thinking:
- Does my boss need to give me three written warnings before I can be fired?
- What kind of behaviour warrants a warning?
What can I do if I believe my warning and dismissal was unfair?
What is a written warning?
A written warning is a letter an employer may give to an employee to formally tell them about a concern they may have about an employee’s behaviour or performance in the workplace.
A written warning is to let them know that there are concerns, it must outline what those issues are, offer advice on how you can address those issues and what might happen if your behaviour or performance doesn’t improve
Are three written warnings always necessary?
Many people (both employers and employees) believe that three written warnings are required before and employer can dismiss or ‘fire’ someone. This is not the case. Three written warnings are not required by New Zealand law in order for an employer to dismiss an employee.
It is entirely possible, in serious cases, to be terminated without receiving a prior warning. In these cases, the misconduct will usually be something that has destroyed the trust and confidence the employer has in their employee, so that the employment relationship cannot continue.
Examples of serious misconduct which could lead to dismissal without a warning, or a notice period include:
- theft
- assault
- serious health and safety breaches
- fraud.
When a warning may be required
Circumstance when employers might be required to first issue a warning before dismissing an employee are if disciplinary actions are outlined in an employment agreement or a policy manual.
In some cases, it may not be reasonable for an employer to take a disciplinary step when the employee, is not expecting it.
An employer could decide to issue a series of warnings where the misconduct on its own isn’t serious enough to warrant being dismissed.
If an issue happens often and becomes more serious, i.e., arriving late for work on a couple of occasions isn’t enough to lead to termination. If though you’re regularly late and your employer loses confidence in your ability to do your job, they may decide to warn you before terminating your employment.
Warnings can be issued where employees fail to follow workplace policies and/or rules, the terms of any employment agreement, or reasonable instructions. Warnings may also be issued if work performance is poor, and you have gone through a performance improvement plan without meeting the expected standards agreed.
What does an employer need to do before taking disciplinary action?
Disciplinary action is something that an employer may follow in response to an employee’s misconduct. Common types of disciplinary action are warnings and dismissal, but may also include counselling, suspension from work or a requirement to attend professional development.
While there’s no set number of warnings required by New Zealand law before your employer can dismiss you, your employer has to follow a fair process and act in good faith when deciding what action to take.
It doesn’t matter what kind of disciplinary action is being taken the employer must follow a fair process.
This means employers must:
- establish the facts of the matter by investigating the situation, make no assumptions
- provide the employee with an opportunity to respond with any evidence gathered
- fully explain the seriousness of the situation
- advise you that you are entitled to have a support person or representative assist you
- remind you that you have access to support, EAP, counselling etc.
- outline the process that will be followed to investigate the situation, i.e., dates, time frames for interviews, who will make the final decision.
In some cases if the skill sets to conduct an investigation are not available, in house, the employer can contract a qualified person in to conduct them on behalf
There is an expected duty of good faith in these matters which requires parties to be open and honest with each other.
If an employer provides a warning, the warning should make future expectations clear and explain what will happen if there is no improvement to the performance or conduct.
Author: Ronald Jones