“We’d given him a dozen warnings for poor behaviour… but now HE’s raised a personal grievance?!”
It’s a story we hear a lot in employment law. An employer will have a staff member whose performance or conduct has fallen below the level expected in their role. It may be a minor misconduct such as frequent lateness, or more serious safety issues. The employer has lots of “chats” with the employee, sees no improvement, gets (unsurprisingly) frustrated, and gives the employee their marching orders. And then three weeks later, a personal grievance arrives in their inbox claiming unfair dismissal and a hefty penalty in the Employment Relations Authority.
So, here’s a word of warning about warnings.
Warnings are a good tool to course-correct where an employee’s work performance or conduct has fallen below the level expected. If an employee receives several warnings, these may form a basis for further disciplinary action or possible dismissal – but they need to be done right to be relied on for that purpose. Otherwise, your “warning” may be just an “informal chat” (which is a good first step – but the employee may claim down the track they didn’t realise there was a serious issue). It’s also worth pointing out up front that a warning is a disciplinary outcome in itself – which means it can only be arrived at after following a full and fair process. (Note, this article does not discuss that process in detail).
Firstly, warnings need to be clear and specific, for both you and your employee. A proper warning will clearly convey the specific behaviour (“You arrived at 8.20am instead of your start time of 8:00am on Monday, last Tuesday, last Thursday and the previous Wednesday and Friday”) and the potential consequences if they fail to improve (“It causes issues for the rest of the team if you are not at work when you are meant to be. You have not provided a satisfactory explanation for your lateness. Consistent lateness is a form of misconduct. We expect you to be at work and ready to start work at your start time. We want to put you on notice that if this behaviour continues, we may consider it more serious and may impose a range of disciplinary sanctions on further occasion including (but not limited to) implementing a performance improvement plan, issuing a formal written warning, or proceeding to dismissal”). It’s important the employee knows exactly what behaviours you are referring to, so they know what to improve on, and the consequences if they ignore the warning.
After you provide the warning, you must allow the employee a reasonable opportunity to change their behaviour, that is, a realistic timeframe for improvement. This timeframe depends on the behaviour and conduct. It is not reasonable to expect a long-term issue to correct itself overnight (e.g. communication style) but safety factors may also influence the timeframe (for example, it is reasonable to expect an employee to cease an unsafe practice such as driving a work vehicle at excessive speed, immediately).
Lastly, keep a written record! For earlier warnings, you may only have a verbal conversation with the staff member. However, you should make a file note of the date and time of the conversation, who was present, and what you covered in your talk and keep this somewhere safe. For subsequent or more serious warnings, it is worth giving the warning in writing so both you and the employee have a record of it.
Clear warnings that detail specific behaviours and consequences are a good tool for employers. They can enlighten an employee that their behaviour is problematic and let them know what they need to work on – and they may just improve! If they don’t, a series of proper, documented (whether written or oral) warnings can help provide a basis for terminating employment.
You should also note that procedurally, you cannot just give an employee notice after a warning(s). Terminating employment for non-performance has its own procedural fishhooks – we strongly recommend you seek legal advice before terminating employment to reduce your risk of the terminated employee raising a personal grievance. It can save a lot of stress and cost in the long run.
If you are thinking about how to deal with a problematic employee, our experienced, specialist employment team is happy to help, from identifying the right approach, through to proper process and how to communicate with employees throughout the process. Please contact one of us or your usual WRMK Lawyers adviser.
How can we help?
WRMK Lawyers has Northland’s largest team of employment law specialists. We help our clients with all their employment processes. Please give one of us a call or contact your usual WRMK lawyer for advice.
Our thanks to Georgia Blockley and Kezia Purdie for writing this article.
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