This Employee Warning Letter is designed to be used by an employer early in the disciplinary process. For example it may be used for a first or second warning to an employee, but is not designed as a final warning. For a final warning, use our template Employee Final Warning Letter.
This is part of our collection of letters for underperforming employees. These are designed to be used in the following sequence:
1. Employee General Warning Letter.
2. If employer wants to provide a second or third warning to the employee - use Employee General Warning Letter again.
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.
Many employers choose to use the following process (even if not required by law). However, if the law requires more to be done, then it may be necessary for the employer to do more than this:
1. Have a first meeting with the employee, to discuss the performance issues, provide a strategy for improvement (such as deadlines for improvement, and quantifiable goals for the employee). Provide a letter of warning to the employee.
2. If performance has not improved by the due date, have a second meeting with the employee to advise that performance has still not improved. Provide a second letter of warning to the employee.
3. If performance still does not improve, have a third meeting with the employee. Advise the employee that if their performance does not improve by a particular date, their employment may be terminated. Provide a third warning letter to the employee, confirming these details.
4. If performance still does not improve, have a fourth meeting with the employee to terminate employment, and provide a copy of this letter.
How to use this document
The employer may first need to check for any particular procedures that the employer is required to follow. Minimum standards for employment are set in the 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 knows what it needs to do to deal with the employee, 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. The information that may be added to this letter includes:
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 employer has nominated a date for a follow up meeting, the employer will need to keep track of that date and follow up with the employee as appropriate. If the employee's performance does not improve, then the employer may prepare a subsequent warning letter, using this template, or an Employee Final Warning Letter.
The Fair Work Act 2009 (Cth) and the National Employment Standards 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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