When it comes to the law around written warnings, it’s normal to have questions.
You might be wondering:
- Does my boss need to give me three written warnings before I can be fired?
- What kind of behaviour warrants a warning?
- What can I do if I believe my warning and dismissal was unfair?
We asked Jaenine Badenhorst, an associate lawyer with Rainey Collins, to talk us through written warnings, plus what’s legal and what’s not in this situation.
What is a written warning?
A written warning is a document an employer gives to an employee to formally indicates a concern about their conduct or performance in the workplace.
The idea behind a written warning is to let you know that there are concerns, how you can address those concerns and what might happen if your conduct or performance doesn’t improve.
Are three written warnings always necessary?
Lots of people believe three written warnings are required before your employer can dismiss or ‘fire’ you. This is not the case. “Three written warnings are not required by New Zealand law in order for an employer to dismiss an employee,” Badenhorst says.
It is possible, in serious cases, to have your employment terminated without receiving a prior warning. “In these cases, the misconduct will usually be something that destroys the trust and confidence your employer has in you, so that the employment relationship cannot continue,” Badenhorst says.
Examples of serious misconduct which could lead to you being dismissed without a warning or a notice period include:
- theft
- assault
- serious health and safety breaches
- fraud.
When a warning is required
Badenhorst explains that the only circumstance when employers might be required to first issue a warning before firing an employee is if disciplinary actions are outlined in your employment agreement or in a policy manual.
“In that case, it may not be reasonable for an employer to take a certain disciplinary step when you, the employee, were not expecting it.”
Employers may decide to issue a series of warnings where the misconduct on its own isn’t serious enough to warrant being fired, Badenhorst adds.
But if it happens repeatedly, the situation becomes more serious. For example, arriving late at work on a couple of occasions isn’t enough to lead to termination. But if you’re regularly late and your employer loses confidence in your ability to do your job effectively, they may decide to warn you before terminating your employment.
“Usually, warnings are issued where employees fail to follow workplace policies and rules, the terms of their employment agreement, or reasonable instructions,” Badenhorst says. “Warnings can also be issued if your work performance is poor and you have gone through a performance improvement plan without meeting the expected standard of performance.”
What does my employer need to do before taking disciplinary action?
Disciplinary action is something that an employer does in response to an employee’s misconduct. The most common types of disciplinary action are warnings and dismissal, but may also include counselling, suspension from work or a requirement to attend professional development.
While there’s no set number of warnings required by New Zealand law before your employer can dismiss you, your employer has to follow a fair process in coming to a conclusion about taking disciplinary action.
No matter what kind of disciplinary action is taken (whether it’s a verbal warning, written warning, final warning, termination or something else) your employer must follow a fair process.
This means employers must:
- establish the facts of the matter by investigating the situation (rather than assuming its truth)
- provide you with an opportunity to respond with any evidence gathered (this can be in writing or a meeting)
- explain the seriousness of the situation (for instance by pointing out what the possible outcome might be)
- advise you that you are entitled to have a support person or representative assist you
- remind you that you have access to support (for instance counselling through an Employee Assistance Programme)
- indicate the process that will be followed to investigate the situation (for instance who will be interviewed, the likely date of the final decision, the name of the decision-maker, who can be contacted for further information, and so on).
“The duty of good faith requires that employers and employees are open and communicative about these types of matters,” Badenhorst says. “If your employer gives you a warning, the warning should make future expectations clear and explain what will happen if there is no improvement to your performance or conduct.”
Even though it can be stressful to receive a warning, it is an opportunity for you to have an open conversation with your employer and make adjustments to your workplace performance.
Remember that you can always take a support person with you if you’re accused of misconduct, and the government provides free employment advice to employees on its employment website. If you’re still not sure of the steps you should take, seek advice from an employment law professional.
Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.
