Can you fire someone without a written warning?

As an employer, you may face rare occasions where you need to take disciplinary action with a team member.

It’s not always an easy situation to handle, and it’s important to understand your rights and responsibilities as an employer when it comes to warnings and disciplinary action.

Jaenine Badenhorst, an associate lawyer with Dyhrberg Drayton, explains what you need to know about written warnings and answers some of the most common questions about employers’ rights and responsibilities.

Are 3 written warnings always necessary?

It’s a commonly held assumption that 3 written warnings are required before an employer can terminate an employee’s contract. 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.

Instead, your decision to issue a warning or to terminate a person’s employment must be proportional to their misconduct. “In situations where misconduct is serious, an employee could be terminated without ever receiving a prior warning,” Badenhorst says.

“In these cases, the misconduct will usually be something that destroys the trust and confidence you have in the employee so that the employment relationship cannot continue.”

Examples of serious misconduct which could lead to instant dismissal include:

  • theft
  • assault
  • serious health and safety breaches
  • fraud.

When you may have to give a warning

If disciplinary actions are outlined in an employee’s employment agreement or in a policy manual, a first warning might have to be given. It could be verbal or written.

“In that case, it may not be reasonable for you as an employer to take a certain disciplinary step when the employee was not expecting it. You have to follow your own policy.”

Badenhorst adds an employer is required to issue a series of warnings where the misconduct is not serious enough to warrant dismissal.

But if it happens repeatedly, the misconduct becomes more serious. For example, an employee arriving late at work once isn’t enough to warrant termination, however, if they’re regularly late and you have lost confidence in the employee’s ability to do their job effectively, termination may be appropriate.

“In this case, you may rely on a series of warnings to justify the employer’s later more serious action,” Badenhorst says. “The subsequent warnings must be about similar behaviour. It is important that you treat each new allegation of misconduct as a fresh allegation and get the employee’s side of the story, not assume guilt just because the employee has previously been guilty of the same or similar actions.”

Following a fair process

Regardless of the disciplinary action taken (whether it’s a verbal warning, written warning, final warning, or termination) you must follow a fair process. That means putting the allegation to the employee, telling them they can have a support person present, and carefully considering their response.

“Record everything in writing, so you can show evidence of following a fair process,” Badenhorst says. “Where meetings are held, audio recordings are a good idea (with the consent of all attendees) or notes should be taken and shared with the attendees afterwards.”

What if I want to give my employee a warning?

Usually, warnings are given where an employee fails to follow workplace policies and rules, the terms of their employment agreement or instructions given to them.

If you do issue a (written or verbal) warning, it should be recorded on the employee’s employment file. Badenhorst says having a clear record will help to reduce the possibility of misunderstandings, especially regarding the possibility of dismissal in the event of a repeat incident.

“Sometimes employers will issue a warning which will remain on an employee’s record for a set period of time (for instance 12 months), with a clear message that any repeat misconduct may result in further (and more serious) disciplinary action,” she says. “If you give your employee a warning, the warning should make future expectations clear and explain what will happen if the employee repeats the unacceptable behaviour."

“Warnings can also be issued where an employee’s performance is poor and they have gone through a performance improvement plan without meeting the expected standard,” Badenhorst says. That is a separate process (managing poor performance) and should not be confused with a disciplinary process for addressing misconduct, she adds.

Navigating the process

If you’re unsure how to deal with misconduct, start by consulting the relevant employment agreement and any applicable policy documents. “Getting the process wrong can often be costly, time consuming and stressful,” Badenhorst says. “Even where there are good grounds to take disciplinary action against an employee, where a fair process is not followed, the employee could still raise a personal grievance and claim compensation.”

It is expensive and time consuming for businesses to lose staff, so giving an employee a warning offers them a chance to prove themselves – an outcome that can benefit not only them, but also your business.

The government provides free employment advice to employers and employees on its employment website and 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.

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