Written Warning Letter to an Employee in Australia: What to Include and a Fair Process

A written warning letter tells an employee, in plain terms, what the conduct or performance problem is, what you expect instead, the support you will give, and by when things need to improve. The Fair Work Ombudsman says a warning should be given in writing, and that you should meet the employee about the problem before you give one. If the matter is still open and you want the employee’s side first, a show cause letter puts the concerns in writing and invites a response before you decide anything.

Claim Done drafts a show cause letter, first or final written warning, or termination letter for small employers from your answers, with a record of the meeting for your file, for a flat A$49.

Why a fair process matters

The Fair Work Ombudsman’s unfair dismissal page explains that when the Fair Work Commission decides whether a dismissal was harsh, unjust or unreasonable, it must consider several factors. These include whether there was a valid reason relating to the employee’s capacity or conduct, whether the employee was given the reason and a chance to respond, and, for underperformance, whether the employee had been warned before the dismissal. If the Commission decides a dismissal was unfair, it may order reinstatement or compensation.

A small business employer has fewer than 15 employees, counting the employee concerned, regular and systematic casuals, and employees of associated entities. Its employees can apply for unfair dismissal only after 12 months of employment (6 months for a larger employer), and must apply within 21 days of the dismissal.

Small businesses also have the Small Business Fair Dismissal Code. The Fair Work Ombudsman says a dismissal that follows the Code will be considered fair. The Code and its checklist say plainly that completing the checklist does not mean the Code has been complied with. In cases other than summary dismissal, the Code says you must:

• give the employee a reason why they are at risk of being dismissed, and it must be a valid reason based on their conduct or capacity to do the job
• warn them, verbally or preferably in writing, that they risk being dismissed if there is no improvement
• give them an opportunity to respond to the warning and a reasonable chance to fix the problem, having regard to their response.

The Code also says that in discussions where dismissal is possible, the employee can have another person present to assist, but that person cannot be a lawyer acting in a professional capacity.

Before you write: three checks

1. Your own rules. The Fair Work Ombudsman says to check whether your award, registered agreement, employment contract or a workplace policy sets out steps you need to follow first.
2. The real reason. The Fair Work Ombudsman says it is unlawful to take adverse action against someone because they have or use a workplace right (such as asking about their pay), belong or do not belong to a union, or have a protected attribute. Keep a warning to conduct or performance only.
3. Which system covers you. The Fair Work system covers most Australian workplaces, but not all. For a private business:

The show cause letter: hearing them before you decide

The Fair Work Ombudsman’s formal steps checklist says to tell the employee why you want to meet and who will be there, let them bring a support person (a co-worker, family member, friend or union representative, there to support, not to speak for them), invite them to respond, and consider what they say. If you need time to look into it, meet again in a day or two.

A show cause letter does that in writing. It sets out each concern with its date and facts, says no decision has been made, and offers a meeting, a date for a written reply and a support person.

What a written warning letter should say

The Fair Work Ombudsman’s warning letter template says you should not give a written warning until you have met the employee to discuss the problem. Its checklist says the letter should include:

• details of the performance or conduct issue
• what has been discussed with the employee about it
• what you will do to help
• an action plan with the steps the employee needs to take to improve
• a reasonable timeframe for the changes or improvements.

The Fair Work Ombudsman’s managing performance page adds: be clear about the reason, write down the details, set clear expectations, keep the warning fair and reasonable, and explain the consequences of not improving, including whether termination is a possibility. The warning letter template adds: never set requirements that are discriminatory, unlawful or otherwise unreasonable.

First warning or final warning

There is no general rule that you must give 3 warnings, or even 1, before ending employment, but the Fair Work Ombudsman says you should usually give the employee a chance to fix performance issues. A final written warning is usually given after earlier written warnings about the same issue, where it has not improved. The formal steps checklist suggests a reasonable period to improve, typically 6 to 8 weeks, with regular check-ins and a review meeting at the end.

The structure of a warning letter

• Heading block: business name, date, “Private and confidential”, the employee’s name, and “First written warning” or similar.
• The meeting: the date, who attended, that the concerns were put, and the employee’s response in neutral words.
• The concerns: one numbered item per concern, with date and facts. No comments on character.
• Earlier warnings (final warning only): each earlier written warning and its date.
• What is expected: the specific standard or rule, and what must change.
• Support: any training, supervision or check-ins you will give.
• Review: the date you will meet again to review progress.
• This warning: which warning it is, and that employment may be terminated if there is no improvement by the review date.
• Your comments: that the employee may respond in writing and the response will be kept with the letter.

Giving the letter and keeping records

Record how you gave the letter: the time, date, who was there and what was said. You can ask the employee to sign a copy, but they are not required by law to. Keep a copy, plus thorough notes of meetings and copies of emails and warnings, signed and dated, and note any refusal to sign. Under the Code, if an employee claims unfair dismissal a small business will be required to provide evidence of compliance, including that a warning was given (except in summary dismissal).

Serious misconduct

The Fair Work Ombudsman’s dismissal page says serious misconduct is when an employee deliberately behaves in a way that is inconsistent with continuing their employment, including conduct causing serious and imminent risk to someone’s health or safety, or to the business’s reputation or profits. Examples include theft, fraud, assault or sexual harassment during employment, being intoxicated at work, and refusing a lawful and reasonable instruction that is part of the job. No notice is required, and warnings may not be appropriate. Under the Code, a small business may dismiss without notice or warning when it believes on reasonable grounds that the conduct justifies immediate dismissal. Write down what you found, and give the employee the reason and a chance to respond before you decide.

Mistakes to avoid

• Giving a warning before the employee has heard the concerns and had a chance to respond.
• Vague complaints instead of dates and facts.
• Refusing a support person, or not offering one.
• Basing a warning on a pay complaint, union membership or a personal attribute.
• Treating any letter or form as proof the process was fair. It is what you did that counts.

The Fair Work Ombudsman suggests independent advice (an employer association, a lawyer or a workplace relations professional) before disciplinary action. Its Infoline is 13 13 94. When you are ready to put the concerns in writing, start your letter to the employee. It drafts only the steps you describe, and you give it to the employee yourself.