Can you fire someone without a written warning?
As an employer, you may face rare occasions where you need to take disciplinary action against 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 issuing warnings and taking disciplinary action.
Jaenine Badenhorst, Employment lawyer at Empower Law, explains what you need to know about 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 dismiss an employee. 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.
Badenhorst says “It comes down to what is fair and reasonable in circumstances. Fairness is about the process followed by an employer before taking disciplinary action, and reasonableness is about the decision being justifiable.”
“In situations where misconduct is serious, an employee could be dismissed 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
You may issue a warning to an employee if they have misconducted themself, but their conduct is not serious enough to justify more severe consequences.
If disciplinary steps are predetermined in an employee’s employment agreement or in a policy manual, a warning might have to be given the first Instance.
“It may not be reasonable for you as an employer to take a certain disciplinary step when the employee was not expecting it.”
A warning will signal to the employee how they have fallen short, and clarify the employer’s expectations going forward. A warning can be a helpful tool to address minor issues before they escalate.
Warnings can increase in severity according to the seriousness of the misconduct. A minor infringement might be appropriately addressed with a verbal warning. More serious conduct could be addressed with a written warning or a final warning.
“Verbal warning should be communicated clearly and noted on the employee’s file, in case there is a repeat of the issue”, Badenhorst says.
Badenhorst adds “An employer may issue a series of warnings for less serious, but ongoing, misconduct”.
If an employee’s conduct continues to be a problem, an employer could refer to prior warnings issued to justify taking more serious disciplinary action (even if the conduct on its own is not of the most serious kind).
In deciding whether to issue a warning (or some other form of disciplinary action), an employer’s must be objectively reasonable in the same circumstances.
Badenhorst says “An employer should always ask themself, if their proposed disciplinary action would seem reasonable to another employer in the same position. If the answer is ‘no’, then the disciplinary action is likely to be unjustifiable.”
Following a fair process
“Employers must always follow a fair process before issuing a warning or taking other disciplinary action”, says Badenhorst.
That means informing the employee of the allegations against them, providing them with all the material that will be considered by the decision-maker, and giving the employee a reasonable opportunity to comment before a decision is made.
You should tell the employee they can have a support person or representative during the process.
“Record everything in writing, so you can keep track of the evidence and you can demonstrate you have followed 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.”
“Following a fair process also means following your own disciplinary processes and policies" Badenhorst adds.
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 when there is good reason 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 themself – 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.