By Isaac Chan
Written warnings are not a new concept to many employers but something that a lot of employers struggle with. Regularly I encounter questions like “What do you need to put in a written warning?” and “How detailed does a warning letter need to be?”
In this article I discuss the common questions that come with how to write a written warning.
Procedural Fairness
Before you even start considering writing a written warning, it is best practice to have a formal meeting with your employee first to discuss your concerns. In undertaking a formal meeting it’s important to also ensure that you are taking steps to follow procedural fairness. This means that prior to the meeting you:
- Invite the employee to the meeting in writing;
- You schedule the meeting at a time which gives the employee at least 24 hours’ notice in advance; and
- Invite the employee to bring a support person if they would like to.
While following the above may seem like adding extra steps to what seems like a straightforward process, it’s really important that you ensure you follow a procedurally fair process to any disciplinary action.
What should I put in a written warning?
Typically, the important content that you need to put in a warning letter includes the following:
The date
While it may sound silly to raise this, it’s really critical to have the date reflected on the warning in the instance that you need to rely on it later for a following warning or termination. It’s a simple detail but you would be surprised at how many employers forget it.
Title: “First written warning”
It is really important to title the letter accordingly. Is this your employees first, second or final written warning? It not only sets the status quo with your employee by making them aware of how many “strikes” they are on, but it also allows you to plan for the future if you have an employee on their “final written warning.”
The concerns
This is where you outline the reasons as to why the warning is being issued. While you don’t need to write an extensive paragraph, you need to at least provide enough detail of the concerns so that it is clear why the warning is being issued. An easy and effective way to do this is to write the reasons as dot points.
Put the employee on notice of future disciplinary action
This is a crucial part of a warning letter. At the end of the letter it is prudent to write a paragraph outlining that you except that your employees behaviour/conduct/performance needs to change and if it doesn’t, further disciplinary action, up to and including termination of their employment will be considered. Not only is this important because it gives your employee an idea as to how serious this issue is, but it ensures you have put your employee on notice that future disciplinary action will be considered if their conduct does not improve. The importance of this is that it allows you to enter into further disciplinary action, whether that be another written warning or even potential termination, because your employee was put on notice of this fact.
The effect of not putting your employee on notice that they may be subject to further disciplinary action if they fail to improve, is that if you were to take further disciplinary action, and that disciplinary action ended up being termination, there is an argument for the employee to say that they were not previously warned that the continuation of such conduct would result in termination. If your employee were to lodge an unfair dismissal claim, this is a consideration the Commission will take into account.
Confidentiality
It’s always a good idea to end the letter by expressly stating that the contents of the letter and the information discussed in the meeting are strictly confidential and cannot be discussed with any person, other than your employees immediate family or advisor, and that failure to adhere to this confidentiality request may be subject to disciplinary action. This will hopefully stop the gossiping around the workplace.
When should I issue the warning?
During the disciplinary meeting with your employee, you will verbally advise them of your decision to issue them with a written warning (after of course hearing their response to the issues raised and considering any mitigating factors), however I do not recommended physically issuing them the warning at this time. Let your employee know that the letter will be provided to them in ‘due course’.
The reason I suggest this is so you can demonstrate that you haven’t entered the meeting with a pre-determined outcome. Instead, the meeting was the opportunity for you to outline your concerns and the employee to respond to this. You then typically would adjourn the meeting and seriously consider what your employee had to say. It is after you have considered your employees response that it is open to you to make a decision as to the nature of the outcome. It may be that a written warning is not the appropriate outcome after hearing your employee’s response. If however it is, by not having the warning already pre-drafted, it will show the employee you did not entre the meeting with a pre-determined decision.
How many written warnings?
1st strike, 2nd strike, 3rd strike, termination? Isn’t that how it goes? This is a really common question and unfortunately there isn’t a straightforward answer. The amount of written warnings you give an employee depends on how serious the conduct or performance issues are, and you need to take it on a case-by-case basis. Generally, three warnings is a good approach but that can always change depending on the circumstances.
A warning letter doesn’t have to be a perfectly drafted masterpiece, nor is that the expectation. At the end of the day, you are business owners not legal advisors. However, if you include the points above, you’re on track to have a great letter which reflects best practice and compliance, ready to be issued to your employee today!
Isaac Chan is an experienced workplace relations consultant at FCB Group and HR Assured. Isaac regularly handles complex workplace issues for all kinds of businesses, from start-ups to enterprise-level.