Can an employee challenge a written warning?

Written warnings are usually issued by employers to employees whose performance or conduct does not align with the expectations of the organisation. A warning may be given because of a breach of a policy or simply as a way of informing an employee that their work isn’t up to standard. Not every warning should be taken as gospel, though, as there are steps the employer should take to ensure that the warning is legally sound, particularly if it leads to termination of employment.

How should a warning be delivered to an employee?

To avoid the employee bringing a claim for unfair dismissal in the future, employers should be sure to issue a warning that is free of ambiguity. The warning should clearly identify which aspect of the employee’s performance or conduct is of concern and how it breached the relevant organisational policy. The warning should also expressly outline that further conduct of a similar manner may result in termination of their employment.

An employer may include in the warning expectations of the employee in the form of targets, KPIs or other behaviours the employee must engage in to demonstrate their improved performance.

In terms of physically issuing the warning, employers should seek to provide the warning in writing so that the employee can refer to it and there is no confusion about its officiality or the weight it bears.

Can an employee challenge a written warning?

After receiving the warning, an employee should be offered the opportunity to respond to it. The employee should be given the opportunity to ask questions and to clarify why particular behaviour or conduct took place. The employee should be allowed to bring a support person along if a formal meeting takes place.

It is a common misconception that a certain number of warnings must be provided to an employee before their employment can be terminated, however, there is no expectation on employers to issue a certain number of warnings before they can legally dismiss an employee. By the same token, an employee should not assume that receiving one warning means they have a certain amount of additional warnings owed to them before their employment can be terminated.

It is typically at the discretion of the employer to issue warnings as they see fit, and this right usually comes without any level of external scrutiny. This is negated, however, if the employer issues a warning for something unlawful or if the warning(s) form part of a pattern of workplace bullying, in which case the employee who received the warnings may be able to bring a claim to the Fair Work Commission.

How does the Fair Work Commission ascertain if a warning is fair or not?

In cases where an employee believes that the warning(s) they received was unlawful or formed part of a pattern of workplace bullying and a claim has been brought to the Fair Work Commission, the Commission will rely on a number of factors including the period of time between the warning being issued and the employee’s eventual dismissal. If the time between the two events was too short, the dismissal may be deemed as unfair as the employee may not have been given ample time to reflect on the warning and improve their performance accordingly.

Similarly, if the employee was not led to believe their employment was in danger as a result of the warning, any termination may be found to be unlawful. Employers should, therefore, expressly inform recipients of warnings that subsequent warnings and/or a lack of improvement in their performance could lead to automatic termination of their employment.

If you have been issued a warning by your employer but you believe it is inaccurate or the warning was unfair, you should seek legal advice. Similarly, if your employment was terminated after receiving a warning but you were not provided with an opportunity to improve your performance our experienced employment lawyers can help you bring a claim to the Fair Work Commission if required.