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This Employee Final Warning Letter is designed to be used by an employer as a final warning to the employee. It is not designed as a first or second warning to an employee. For a warning that is not a final warning, use our template Employee General Warning Letter.
This is part of our collection of letters for underperforming employees. These are designed to be used in the following sequence:
2. If employer wants to provide a second or third warning to the employee - use Employee General Warning Letter again.
3. Employee Final Warning Letter.
An employer is not generally required by law to provide a certain number of warnings, or to provide formal written warnings, to an employee before terminating their employment. However, if the employment is terminated, and the employee makes an unfair dismissal claim, then the Fair Work Commission will pay attention to whether the employee was warned about their job performance issues before being terminated, and whether they were given the opportunity to improve their performance. Therefore, in order to protect against such a claim, employers usually take care to provide a number of warnings, as well as clear directions about how to improve. Most employers do this in writing, so that they have evidence to produce if they ever need to prove that they were fair to the employee.
Further information about what an employer must do can be obtained from the website of the Fair Work Ombudsman. Small businesses may also need to consult the Small Business Fair Dismissal Code.
It is important that the employer understands its obligations in relation to this matter. If an employer breaches some of these obligations, then it could face penalties for unfair dismissal, and may be unable to remove the employee.
How to use this document
The employer may first need to check for any particular procedures that the employer is required to follow, and any minimum notice periods. Minimum standards for employment are set in the National Employment Standards. However, if there is an applicable industrial instrument (such as an award or a registered agreement), then this may set additional requirements. In addition, a contract of employment or a workplace policy might also set additional requirements. In any case, the employer will need to comply with whatever requirements are most favourable to the employee. The National Employment Standards are only the minimum standards.
Once the employer is satisfied that it has followed the appropriate procedures and is entitled to terminate the employee's employment, the employer may prepare this letter by including all of the relevant information when prompted.
The employer should ensure that the letter contains enough information so that the employee knows what has gone wrong, and what he or she can do to correct it. In particular, the employer will be able to provide details of the problems with the employee's job performance, and the steps that the employee should take to rectify these problems. In addition, the letter will contain a warning that if the employee's performance does not improve by a particular date, then the employment will be terminated.
The employer may then organise a meeting with the employee, and at that meeting, provide a copy of this letter to the employee. The employer should also keep a copy for their own records. Alternatively, the employer may deliver a copy of the letter to the employee without having a meeting. However, in most cases, a meeting is likely to be preferable.
The employer may then monitor the employee's performance. If the employee's performance does not improve, then the employer may prepare a Letter of Termination of Employment (General).
The Fair Work Act 2009 (Cth) and the National Employment Standards (NES) apply to most employment situations in Australia.
However, in addition, many employment situations are also governed by modern awards or enterprise agreements. If such an award or agreement applies, then that will set out some additional minimum standards with which the employer must comply.
In addition, general principles of contract law, as provided by the common law, will apply to any employment contract.
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