Warnings sit in between counselling and termination in the disciplinary action scale. So what does it mean if you’ve just been given a warning (hopefully with some prior due process, but that’s a topic for another bulletin). A warning has no particular legal status of itself but should be treated seriously. Warnings don’t have to be in writing but are easier to prove and carry more weight if they are. In the public service, a warning may be accompanied by a demotion or pay decrease but not in the private sector. It is simply a statement by the employer that it considers an employee’s particular conduct unacceptable and more serious disciplinary action may be taken, including termination, if there is a repeat.
Warnings can be about performance or conduct issues. For instance, not making enough sales or completing tasks on time are performance issues. Aggressive behaviour, negligent use of a company car, breaches of WHS rules are examples of conduct issues.
Let’s say a warning is given, and a repeat of the conduct occurs or there is no improvement in performance. In that case disciplinary action on the second occasion may be more serious than if it was a first incident. An incident which may simply deserve a warning may be escalated to second or final warning status if a warning already exists. There is no “one size fits all” rule but a second or third instance of the conduct within a reasonable time may result in termination.
Sometimes a performance based warning will be given in tandem with a performance improvement plan (PIP) requiring further review after a period of time. If the PIP requirements are not met after a reasonable period, this may lead to a further warning and potentially termination if there is no improvement in performance. However, the mere fact a warning has been given does not automatically mean any later performance or conduct issue will be given a higher penalty. Firstly, only warnings about the same or similar issue should be taken into account. Secondly, warnings don’t remain relevant forever. Any warning that is more than 6 months old may be of questionable value.
Then there is the “first and final warning”. These should be avoided by employers in all but the most serious of cases such as aggression towards colleagues or more serious WHS breaches. The Fair Work Commission has made comments in several decisions about the inappropriate use of first and final warnings by employers. A first and final warning should only be used in serious conduct cases where a person is truly being given a once and only opportunity to mend their ways and any repeat of the conduct will result in termination.
There may be avenues to legally challenge a warning but at the very least, you can write to the employer stating why you think the warning is unjustified and asking for it to be removed. It may be possible to raise a dispute under dispute resolution mechanisms. Sometimes unjustified warnings may amount to workplace bullying and depending on the motivation, a breach of legal workplace rights. The pros and cons of seeking to challenge a warning should be considered however. Please contact us if you would like any further information or help.