Workplace warnings – an employers guide

Discover the essential steps and expert advice to effectively issue employee warnings and minimize the potential pitfalls.

Key things you need to know as an employer

There are some things you should know before you give someone a warning: 

1. your rule book is the Employment Relations Act, alongside case law that the Employment Relations Authority (ERA), Employment Court (and so forth), set. 
2. you are also restricted to what you can and can’t do according to the terms and conditions you’ve agreed on, which take the shape of the written agreement and any policies and procedures you may have. 
3. employees are armed with information on their rights, the internet makes this accessible to them. This means that you need to know your responsibilities well. Otherwise, one small error could cost the business dearly.

The onus is on the employer

Now that you know this, you should know that an employer must have both substantive justification and be procedurally fair when it comes to dishing out any kind of disciplinary action.  The onus will be on the employer to prove this if it receives a personal grievance. 

Having substantive justification is about having a good reason for being concerned. It’s about ensuring the issue is serious enough to warrant a potential outcome that might have an adverse effect on the employee’s employment. This includes consideration of the outcome and what that means for the person. A dismissal of a doctor, for example, that might lead to them losing their practising certificate should be done with utmost care. 

Being procedurally fair is about taking time to consult an employee with full information. It’s about being fair in how you deal with the employee. It also includes giving the employee an opportunity to comment on the proposal/information before a decision is made. All this needs to be done without making a predetermined decision. Many of these steps need to be done in writing as well. 

So what should be in the process?

These are some of those things: 

• an investigation
• report on the findings
• consultation with the employee
• consideration of what is said
• reasonable outcomes
• reasonable timeframes
• inclusion of advice/representation

Warnings and dismissals 

Warnings are typically given when there is a concern with the employee’s conduct i.e., not wearing PPE, lateness, wasting time and materials, shouting or swearing – things that are not acceptable but with support and the right information the employee should be able to rectify. This is misconduct and these issues would attract a written warning if substantiated. 

More serious issues, are known as serious misconduct and only need to happen once to destroy the trust and confidence needed in the employment relationship – i.e., sexual harassment, bullying, harassment, falsification of company property/documentation, misappropriation of property. These could result in instant dismissal if substantiated. 

Information here is for a formal process. Ideally, organisations will have done everything to build a high-functioning and trusting culture at work to avoid this. 

Summary

As an employer, you need to know: 

1. what the law says you can do
2. what your agreements and policies say
3. if you have any internal benchmarks to consider
4. what are your risks
5. if you have substantive justification
6. how to be fair and reasonable
7. how to follow a fair process

For advice and templates to guide you through this process click here. 

NB: we recommend that you get specific advice as each case will have individual needs to take into account – such as staff on sick leave, the interface with mental health, suspension etc.