Warning Employees Could Prevent Unfair Dismissal Claims – Here’s How

Warnings are an essential workplace tool in helping to ensure that employees understand their employer’s expectations. They also serve as evidence of a fair performance management process and provide supporting evidence should the employee be terminated.

Warnings can play a crucial role in defending unfair dismissal claims as it provides evidence that the employee was aware that they were displaying unsatisfactory workplace performance and conduct.

A workplace warning is defined as a communication, be it verbal or written, to an employee about their performance or conduct at work. Warnings are a tool used to communicate an identified area where an employee needs improvement or where their conduct does not meet the required standard.

The aim of delivering a workplace warning is to give the employee an opportunity to improve their workplace performance or conduct. Verbal warnings are usually administered before a written one as they are less informal and are generally of a less serious nature. That is, they do not warrant summary dismissal.

Once a warning has been issued, the employee’s performance or conduct is usually monitored for a set period.

A written warning should be issued after a warning meeting has taken place. After the meeting, the employee is advised that they will be receiving a written warning in the following couple of days.

Generally, most written warnings will comprise of the following:

  • record who was present at the warning meeting
  • record the fact that the employee was invited to have a support person present
  • outline the conduct or performance which is the reason for the warning
  • where appropriate refer to a relevant policy or the employment contract
  • refer to previous warnings that were issued
  • record the employee’s responses to the matters in issue
  • clearly state that the employee needs to improve, including an explanation of the consequences for failure to improve
  • where relevant, provide support for the employee to improve such as training
  • preferably be countersigned by the employee as evidence of their understanding of the warning

There is no legal requirement regarding how many warnings must be given before termination. The unspoken rule is to use between one to three written warnings to ensure the employee is given enough notice and time to improve their performance or conduct.