Sometimes it’s necessary to issue an employee with a warning. This usually relates to conduct or performance issues and can be the first step towards eventual dismissal. But what happens when an employee has had multiple warnings? Do previous warnings count? And what if the warnings relate to different issues?

What the law says

There is no legislative requirement specifying how long a warning remains valid. When setting a date for review, the seriousness of the problem and the length of time it has been apparent will determine the appropriate length of a warning. Between one month and six months is usually appropriate but will vary according to circumstances. Any warning in effect for more than one year may be considered unreasonable in most circumstances.

For example, in cases of unexplained absenteeism, a shorter review period would generally apply to new employees and chronic offenders. If the employee reaches the review date without recurrences and performance is satisfactory, the warning should be withdrawn. It would still be relevant as evidence in any subsequent unfair dismissal matter in explaining to the Fair Work Commission (FWC) the employee’s performance history with the employer.

Content of a written warning

There is no specific number of warnings that need to be issued to an employee before dismissal can occur. When a written warning is issued to an employee it should contain the following details:

  • details of the performance or the conduct deficiency, stated in specific behavioural terms, e.g. details of the employee’s absenteeism record
  • reference to the relevant company policies or procedures, where the performance or conduct involves a breach of them, and specific description of the breaches
  • details of corrective action required by the employee
  • time frame – either a deadline for improvement or a date on which performance will be reviewed again
  • state the intended action if performance or conduct does not improve to a satisfactory level, e.g. termination of employment
  • reference to types and dates of any previous warnings or other disciplinary action
  • date, names of witnesses, signature of employee (if obtainable), manager and witnesses.

Warnings for different reasons

Industrial courts and tribunals do not consider that a warning(s) must relate to the same reason for dismissal. For example, continued breach of company policies does not mean each breach can be disaggregated from the employee’s overall behaviour, if earlier warnings related to breach of different policies.

A valid reason for dismissal is the ongoing individual breach of several of the company’s policies. Any previous warning, issued for whatever reason, is relevant in relation to any subsequent warning or dismissal.  

Warnings: procedural fairness

While providing warnings in relation to an employee’s poor performance or conduct would satisfy the ‘procedural fairness’ factor in an unfair dismissal matter, the FWC must consider a number of factors in totality. It is intended the FWC will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.

 

Read how to manage employee performance and conduct in the workplace.