Written Warnings in the Workplace
Written Warnings in the Workplace
Andrew Anderson

5 June 2019

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues, particularly related to misconduct claims. Andrew is independently recommended by Doyle’s Guide as one of the leading corporate crime lawyers in Australia.

Written Warnings at Work – Important Information

Written Warnings at Work – Important Information to Know

Receiving a ‘Warning Letter’ at work is a signal that your employment may be in jeopardy if you do not improve your performance or conduct.

Today I am going to address some of the most frequently asked questions we encounter about what to do if you get a written warning at work. In doing so, I’ll also address how employees may challenge written warnings that they consider to be unfair or unwarranted.

While I hope this may be helpful to anybody interested in knowing about written warnings in the context of Australian workplaces, it is not intended to be and is certainly no substitute for legal advice. If you or someone you know needs advice or representation from an employment lawyer, our firm offers a free case assessment to see if we may be able to help in your case.

What is a ‘Written Warning’?

A written warning is a document provided by an employer to an employee to formally indicate a concern about a conduct or capacity in the issue in the workplace. It is designed to put the employee on notice that if they do not improve their performance, there may be consequences for their continued employment.

Significance of a Written Warning

A written warning is important for both employers and employees. I think it helps to think of written warnings through the framework of ‘fairness’. The significance of warning letters in the workplace context emerges when the fairness of a disciplinary process is called into question. Issuing – or not issuing – a written warning carries consequences.

Significance of a Written Warning for Employers

Let’s look first at why written warnings are important for employers. In Australia, employers are subject to workplace laws where employees are afforded certain rights and conditions. Now sometimes these things are set in place through contracts, sometimes enterprise agreements and generally through laws passed by governments. When an employer acts unfairly or unlawfully towards an employee, that employee may be able to challenge the decision or action.

To give an example, for small businesses, issuing a written warning (or, alternatively, a verbal warning), may act to protect the employer from an unfair dismissal claim being successfully made. You see, the Small Business Dismissal Code requires a warning to be given for workplace conduct falling short of serious misconduct that warrants summary dismissal.

Significance of a Written Warning for Employees

Turning attention to employees, a written warning is generally seen as a negative thing. It’s not something you want to receive. That may be so, but the warning should also address what needs to happen to ensure no further disciplinary action need result. In that sense, it is only fair that the employee be put in a position to know what the issue is and how it may be avoided or rectified. When an employee is treated fairly, there is generally no cause to take action over decisions that don’t go your way. On the other hand, an employee who is treated unfairly or unlawfully may certainly have a good claim to pursue against their employer – whether they are unfairly dismissed or otherwise.

Related: Employment Law: Disciplinary ActionRelated: Employment Law: Disciplinary Action

Written Warnings – Frequently Asked Questions (FAQs)

There are a number of myths that surround warning letters in Australia. I think one of main reasons for that has to do with the fact that widespread practices assumes – for some people at least – the status of the law. What the law is and what people do may be two very different things.

I have compiled a list of five frequently asked questions that relate to written warnings that we see here at Anderson Fredericks Turner.

  1. Can you get a written warning before a verbal warning?

Yes, you can get a written warning before a verbal warning.  Under the Fair Work Act in Australia there is no strict progression for warnings. It is possible for an employer to issue a written warning even if no verbal warning has ever been given. Likewise, an employer may notify an employee of a final warning even if it is the first warning issued.

  1. How many warnings are necessary before dismissal can occur?

In Australia, instant or summary dismissals for serious misconduct do not require an employer to have previously given any warnings – written or otherwise – to an employee. The fact of previous warnings being given to an employee may help fortify against claims of ‘unfair dismissal’ or a breach of the general protections provisions afforded to employees.

  1. What does a ‘final written warning’ mean?

A final written warning is issued by an employer when it is clearly contemplated that any further breaches of workplace policies or procedures, or a failure to improve performance in some way, will result in termination of employment.

It is important to note that an employer may simply provide an employee with a ‘first and final written warning’. Again, this is supposed to signify a genuinely held concern about the trust and confidence the employer has in relation to the employee.

  1. How long does a written warning last at work?

In Australia, there is no law that provides a clear answer to how long a written warning lasts in a workplace. Any warning letter that purports to have effect for more than one year may be considered unreasonable, depending on the circumstances. It is often suggested that an operational period of one to six months may be reasonable, which depends on the nature of the conduct or capacity issue that led to the warning letter being issued.

It is one of those questions that really is dependent on the circumstances.

That said, it is important to note that in any unfair dismissal case any history of previous disciplinary action, including warnings will be relevant to the past conduct of the employee.  The question in such cases will be the weight that might be placed on those previous warnings.  Factors which will be relevant include:-

  • The period of time that has lapsed between the warning and the issue in dispute;
  • Whether the previous warning was for same or similar conduct – or for conduct that might be considered minor and unrelated;
  • Whether the previous warning was given in circumstances which were grossly unfair, or plainly in contravention of procedural fairness.
  1. What happens if you get a written warning at work?

If you get a formal written warning at work, a number of things may happen as a result. Generally, a warning letter is issued by the employer when they have some confidence the employee can address the conduct or capacity concern. If the issue isn’t addressed or new problems arise, the fact that there has been some warning in the past can make it easier for an employer to justify greater disciplinary action, including dismissal. For this reason, performance improvement plans may also follow the receipt of a written warning.

If you receive a written warning, you need to decide whether you accept it for what it is or whether you think you are within your rights to challenge it.

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Important Information in Written Warnings

So there are a number of things a written warning should do. In Australia, when the Fair Work Commission is asked to consider whether a dismissal was unfair, it looks at (among other things):

(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(e) if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal

So that comes from section 387 of the Fair Work Act 2009 (Cth). So that really should focus both employers and employees on what important information should be contained in a formal written warning.

There is no formula for what should be in a written warning, as it will need to reflect the specific situation. However, to my mind, some important information that should be addressed includes:

  • the issue giving rise to the warning. It is important that an employer makes clear to the employer why the warning letter is being issued. For example, this may be a breach of a particular law, code of conduct, or relate to a specific term in an employment contract.
  • sufficient detail to inform the employee about how the issue arose. For instance, this may require the times, dates, places and circumstances for each issue giving rise to the warning. Where appropriate, names of witnesses or supporting information (such as documents) should be provided;
  • if a workplace investigation or disciplinary meeting preceded the warning, a summary or record of what that involved and any outcomes or findings made;
  • a clear set of expectations or changes that must be addressed. So again, particularly for unsatisfactory performance issues, there should be a path laid out for people to follow in the future to address the issue.

It is really important that a written warning be accurate and not omit or misrepresent any relevant circumstance. I should also add that it worth keeping in mind that any warning given to an employee really ought to pass the fair and reasonable test, having regard to all the circumstances.

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Challenging or Appealing a Written Warning

There is a general expectation that an employee will have an opportunity to respond to a written warning, which raises a conduct or capacity issue. As I’ve already noted, it is one of the things the Fair Work Commission will look at if somebody claims they have been unfairly dismissed.

If you are in the position of asking how to challenge a written warning you have been given at work, consider the following in framing your response:

  1. Does the written warning accurately set out the factual background? If it doesn’t, it may be that you are facing disciplinary action on a false premise. So it is important to consider whether you need to correct any errors or omissions.

  2. Has the employer outlined or followed all of the relevant rules that apply? So some workplaces may have formal policies about disciplinary action, or there might be some conditions in an employment contract. Ensuring the rules have been followed is essential to ensuring you get procedural fairness.

  3. Once you know whether the facts are set out correctly and the rules, you need to think about your options. You may feel like quitting straight away. Or you could feel anxious by the process and just immediately sign the warning on the spot, hoping that will be the end of it. Decisions driven by emotion may not be your best option. As an employment lawyer, I often have people come to me and realise their options are greater than they realised. So really thinking about your options before you respond is important.

Once you have worked through these issues in your mind, you are generally in a much better position to effectively respond to a warning letter. That may simply be an acceptance that whatever happened justified a warning and you accept it with a view to improving your performance or conduct. But if that is not the situation and you are going to challenge a formal warning it is worth doing so as best you can.

In some situations, the Fair Work Act 2009 (Cth) will allow an employee to challenge a written warning in the Fair Work Commission. Where a person believes the warning is because of ‘adverse action’, such as because of discrimination, sexual harassment or some other invalid reason, they may appeal the written warning. Strict time limits – in some cases merely 14 days – apply to claims so it is important for people to not delay in seeking legal advice from an experienced employment lawyer.

Summary

In summary, whether you are an employer or employee, written warnings can have important consequences. It is obviously an issue that can place strain on employment relationships.

For employers, in drafting a written warning, it is important to consider whether it is fair and reasonable to address the capacity or conduct issue in that way. Getting it wrong can increase the risk of an employee disputing it and any subsequent disciplinary action taken.

For employees, it is not infrequent that getting a warning letter coincides with other difficulties a person may be facing – either in their personal life or at work. In some cases, warning letters can lead people to feel even more stressed or isolated so it is important to ensure you are looking after your health in facing such issues.

If you want to get some legal assistance for an issue concerning warning letters in the workplace, feel free to contact me at this firm to obtain specific and discreet advice about your particular matter.

More Information

The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to written warnings. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville, although we have the capacity to advise and represent people nationally.

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About Andrew Anderson

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues, particularly related to misconduct claims. Andrew is independently recommended by Doyle’s Guide as one of the leading white collar and corporate crime lawyers in Australia.

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