Although issuing a formal warning to an employee can be awkward and slightly unsettling, it is sometimes a necessary aspect of running a business, especially where an employee’s performance has been consistently unsatisfactory. If you are intending to do this, it is crucial that you follow the due processes, so that you have the assurance that you have fulfilled your legal obligations. Additionally, it will enable both you and the employee to be on the same page as to what is expected of them to retain their job.
Step-By-Step Guide
If underperformance has been an issue, the first step which should generally be taken is to discuss this privately with the employee, and understand their circumstances. This would involve developing a performance improvement plan with clearly defined expectations. If this does not rectify the situation, the following step-by-step guide can be used in issuing a formal warning.
1. Set up a meeting with the employee
- Ensure that you provide the employee who is the subject of the formal warning with reasonable notice of the meeting. Notify them that the meeting is to discuss their performance, and that they are able to have a support person present if they wish.
2. Things to address during the meeting
- Express clearly where and how the employee has not performed their work to a satisfactory level, and what is expected of their position.
- Clearly outline what improvements are expected.
- Allow the employee to explain their position. There may be circumstances that you were not previously aware of that led to the underperformance, such as personal issues, workplace bullying, or lack of feedback from management on the employee’s work.
3. Set a date for further review
- Set a time in the future when you will review the employee’s performance to see if they have improved, and taken on board the feedback and strategies that were negotiated in the prior meeting. This time should be reasonable, having regard to all the circumstances, and generally should not be less than two weeks.
- If the failure to show any improvement will result in termination of employment, ensure that you let the employee know of this in clear and explicit terms.
4. Written confirmation
- The meeting should be followed up with written confirmation of what was discussed, as a record for both you and the employee.
There is no legal requirement to provide several warnings before a staff member’s employment can be terminated. However, the employer needs to ensure that they provide the employee with an opportunity to improve, and they comply with the requirements of the Fair Work Act. In particular, in determining whether a dismissal is fair, the Fair Work Commission will consider, in addition to other things:
- Whether there was a valid reason for the dismissal that was related to the employee’s conduct;
- Whether the employee was notified of this reason, and given a chance to respond;
- If the employer did not permit a support person to be present at the meeting regarding the termination, whether this was unreasonable;
- Whether the employer had provided prior warnings that the employee was underperforming.
Following these steps will not only ensure that you have complied with your obligations as an employer and exercised procedural fairness in the process, but it will also be useful in rebutting an unfair dismissal claim, if one arises.
Key Takeaways
- Ensure that you are familiar with your obligations and potential liabilities as an employer under the Fair Work Act when issuing a formal warning.
- Be clear about what your expectations of the employee are, and how they can improve. These should be clearly definable, and have an estimated completion date/deadline.
If you have questions about your obligations in issuing formal warnings, get in touch with Lord Commercial Lawyer’s employment lawyers on (03) 9600 0162 or email us at info@lordlaw.com.au or fill out the form on this page.
