Time and again managers advise me that they have warned employees repeatedly for misconduct or poor performance before the final stroke of the pen at termination. If it were only true!
There is a clear distinction between an employer counselling and warning. The key difference is that counselling is part of performance management, and warnings relate to discipline.
“Warning” is short for “warning that another occurrence of the complained behaviour may lead to the termination of your employment.” If that is not said – it isn’t a warning!
Under the current Workplace Relations Act and the future Fair Work bill, there appears to be no requirement for the warning to be in writing. However common sense should tell you it should be.
Why? Because there may come a time you wish to rely upon the written warning, and without it being in writing, what occurred will be one word against another.
What should a warning look like?
Here are a few tips:
- It should be written and signed by the relevant manager, and have an employer witness. The employee and his or her witness should be offered a chance to sign the document. An employee will commonly decline to sign the warning, and that fact should be noted on the warning.
- It must state the nature of the misconduct or performance issue. This should be a broad description as too narrow a description will limit the capacity to escalate from the first warning to the second, to the third and final warning.
- It should have a plan of supervision, review and training to prevent it occurring again. The plan should state a time frame for the employee to meet the requirements. Discipline is designed not to be a short cut to termination but a method of coercion to create a good employee.
- It should be dated.
- It should state clearly that any repetition of the complaint of misconduct or poor performance may lead to his/her termination.
If you follow these simple rules, your warnings will be warnings.
Andrew Douglas is the founder, principal lawyer and managing director ofDouglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.