Issuing warnings to underperforming employees is never going to be a fun part of the job, however if you intend to so, it is important to follow a proper process. This will ensure you can rely on such a ‘warning’ in any subsequent termination, and, further, that the employee in question knows exactly what is required of them to keep their job.

How to issue a formal warning

If you wish to issue a formal warning, here is a step-by-step you should follow:

  1. Give the employee notice of the meeting – let them know it is to discuss their performance and afford them the opportunity to have a support person present;
  2. Be clear about where they have gone wrong, how that does not accord with the duties of the role, and have real life examples available to back up your position;
  3. Set out with precision what improvement is expected;
  4. Afford the employee an opportunity to respond. For example, there may be some ongoing issue of which you were unaware, or the employee may have been given other tasks by persons not authorized to do so. All of these factors are relevant in assessing whether the employee is, indeed, underperforming;
  5. Set a time for further review, which time must afford the employee a reasonable opportunity to show improvement. While what is ‘reasonable’ will vary dependent on the individual role, no less than two weeks should ever be imposed;
  6. If the failure to improve could result in termination of employment, say that. Make it clear and unequivocal, and have the employee acknowledge that fact by asking, for example, ‘do you understand that failure to show improvement in these areas within the next three weeks may result in the termination of your employment?’; and
  7. Follow up the meeting with a written confirmation, addressing each of the issues in 1 to 6 above.

Contrary to popular belief, there is no requirement of two or three warnings before termination can occur. Provided the employee is given the opportunity to improve and the requirements of the Fair Work Act are satisfied, the employee can be terminated.

Following such steps is not only good practice and fairer to your employee, but they will also be invaluable in the event of a subsequent claim for unfair dismissal and general protections claim.

Conclusion

If you’re in doubt, you should talk to an employment lawyer who will be able to advise you of your obligations, the proper process to adopt, and steps you can take to minimize risk to your business. You should also consult the Fair Work Act before taking any step towards the issue of a first warning, so as to properly understand your legal obligations and potential liability.

Emma Jervis

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