Written Warnings at Work

Published: 15 July 2021

Published: 15 July 2021
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Do you need to know how to deal with an unfair written warning at work?

Get informed about your options following a warning.

If you have received a written warning at work that you believe is unfair, you have options available to you. Ensuring that you appropriately address any written warning, particularly an unfair written warning, can be crucial to protecting your rights, reputation, and livelihood.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about how to deal with receiving a written warning at work, particularly when it may be unfair.

If you have received an unfair written warning and think you need legal advice, contact Anderson Legal. This firm provides expert advice and representation.  Andrew Anderson is independently recommended as being among the leading white-collar crime, corporate crime & regulatory investigations lawyers in Australia. He has substantial experience in assisting employees at all levels to respond to warnings issued by employers.

Unfair Written Warnings at Work

What is a written warning?

A written warning offers an employee an opportunity to address a workplace concern. It should explain the reason for the warning and what the employer expects to change. Employees often receive a written warning due to underperformance or misconduct. A written warning issued by an employer should at least contain:

  • adequate details of the alleged underperformance, misconduct, or other issue giving rise to the warning;
  • any relevant history or background (ie, previous warnings) the employer has taken into account; and,
  • information about how and in what timeframe the employee is expected to address the concerns of the employer.

As part of a written warning, an employee may be or become subject to a performance improvement process. If the concerns of the employer are not adequately addressed, the fact an employee was warned and had an opportunity to do so can strengthen the validity of any disciplinary action, including dismissal.

Why do employers issue written warnings?

In Australia, employers may issue a written warning to ensure procedural fairness. The failure to give employees a chance to fix underperformance or some misconduct can see successful unfair dismissal claims made against employers. An unfair written warning may afford no protection against an unfair dismissal claim.

With respect to unfair dismissal claims, there are two considerations relevant to written warnings that may be taken into account by the Fair Work Commission. Under sections 387(c) and 387(e) of the Fair Work Act 2009 (Cth), failure to give an employee an opportunity to respond to a capacity or conduct issue may be considered as part of an unfair dismissal claim. The law states:

387 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
  1. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
  2. if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and…

The above section, as well as modern awards, enterprise agreements, contractual terms and workplace policies, may all influence how an employer asks an employee to show cause why disciplinary action should not be taken against them. The notion that employers should give employees an opportunity to respond to proposed disciplinary action is well established. With respect to a similar provision replaced by section 387 of Fair Work Act 2009 (Cth), it was said by Moore J in Wadley v YMCA Canberra [1996] IRCA 568:

“In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of the allegations concerning the employee’s conduct as as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made whihc would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”

As can be seen, employers have good reason to issue warnings before making disciplinary decisions, given the failure to do so can see decisions overturned and claims for damages being successful.

Who can issue written warnings?

Often, employees receive a warning letter from their employer. Whether it be a manager or representative of human resources (people and culture), provided that person has been properly delegated to make the disciplinary decision, there are numerous people who may actually issue a written warning within a business or organisation.

No matter whether it is a warning letter issued by an individual employer or a regulatory agency, all responses should be taken seriously because of the impact decisions that may follow can have on careers, reputations and livelihoods. It is for this reason that many people who receive warning, particularly an unfair written warning, obtain employment law advice to assist in understanding how best to respond.

When are written warnings issued?

A written warning should be issued to an employee before any decision to terminate their employment is made so as to allow an opportunity to address or fix the issue. The failure to afford time can see the dismissal being found unfair. As was stated in the decision of Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Cafe – Mindarie [2012] FWA 2 at paragraph [58] by Commissioner Williams:

“Implicit in the word “before” in section 387(e) is that there is a period of time between an employee being warned about the particular aspect of their performance that is unsatisfactory and a subsequent dismissal for reasons that may include that same unsatisfactory performance being repeated. That period of time provides the employee with the opportunity to understand their employment is at risk and to act to improve their performance.”

In some cases, a written warning is provided by an employer or regulator at the conclusion of a workplace investigation into the allegations contained in the warning letter. An investigation may be done by staff within a workplace, or an external investigator may be appointed to carry it out. If a workplace investigation is unfair, it can jeopardise the fairness of the entire process and lead to decisions that rely on it being overturned.

Sometimes, written warnings are issued at a point when it is difficult for an employee to respond as required by the employer. It could be for reasons of ill-health or some other reason. In circumstances when an employee finds themselves unable to respond in the time afforded by the employer to the written warning, it is sometimes possible to get an extension to allow adequate time to address the issue.

If you have received an unfair written warning and are concerned about how it may be used against you, you should seek legal advice as soon as possible, so as to make an effective response to it.

How many warnings should an employee receive?

There is no fixed rule as to how many warnings an employee should receive from their employer. In cases of serious misconduct, an employee may be terminated without any history of warnings. Where unsatisfactory performance may be the reason for dismissal, however, the Fair Work Act 2009 (Cth) does create some obligations for employers in relation to issuing warnings to employees.

A ‘first and final warning’ may be sufficient to given an employee a fair opportunity to address an employer’s concerns in some cases, whereas in others a dismissal may still be considered unfair even after multiple warnings.

In that regard, it is not just the quantity of warnings given to an employee that may matter, but quality. The history of warnings issued by an employer (and employee responses to them) are often relevant if there is a dispute about a disciplinary decision. For example, if an employee files an unfair dismissal claim following being terminated from their position, there must be a valid reason for the dismissal when the case is viewed objectively. If a written warning contained errors or relied on wrong information, it can undermine the objective validity of the dismissal. As was said by the Full Bench of the Australian Industrial Relations Commission (now Fair Work Commission) in Rode v Burwood Mitsubishi (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 2019 1999) at paragraphs [18] – [19]:

“A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason… the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

A response to a written warning, particularly a warning that is unfair, may be used by an employee (and employer, for that matter) if there is litigation about a disciplinary decision, such as in an unfair dismissal claim before the Fair Work Commission. If an employee raised a number of issues in their response to a written warning, which can be shown to have been wrongly disregarded or not considered by the employer, it may strengthen the claim that a decision to dismiss the employee is unfair.

Written Warning Response Options

There are many different approaches a person may take when faced with an unfair written warning. In some cases, there may be multiple strands to a response with each having a distinct purpose but combine to work together. Often the work of an employment lawyer in assisting people who have received a written warning is to identify the strengths and weaknesses of the issues facing their client and to help them chart a path forward. Each case is different, which is why anybody seeking personalised advice about a specific situation should consult a lawyer. Anderson Legal provides a free consultation to individuals facing employment law issues, such as for executives or employees who have been issued a written warning.

Challenging procedural fairness

Before an employee can effectively respond to a written warning, they need to know certain things about what is alleged against them. For that reason, it may be necessary to seek further and better particulars of the warning, or for the employee to be provided with certain evidence relied on by the employer. Without knowing the relevant times, places, and circumstances surrounding what is alleged, it can sometimes be difficult to provide an effective response.

A workplace may also have policies and procedures, or other rules, which set out disciplinary processes, such as the issuing of warnings. If the employer breaches its own policies in issuing a written warning at work, there can sometimes be sound reason to argue that procedural fairness has not been afforded and that any adverse decision made in relation to the employee will be open to challenge.

Experience shows that it is important not to overlook the compliance of the employer with their own policies and procedures. Failing to properly challenge issues of this kind during the process of responding to written warnings can make it harder to raise at a later point, such as following a dismissal decision.

Challenging the alleged conduct

When there has been no comprehensive investigation into the facts underlying the alleged conduct, an employee may wish to provide an explanation for the conduct or capacity issue raised in a warning letter. In some cases, employers may simply be unaware of the full context in which an issue emerged, or that there there are additional facts that undermine the complaint or grievance.

Challenging allegations requires a focus on two issues: credibility and reliability. In essence, credibility concerns honesty whereas reliability may be different. An allegation may be honestly raised, but it may depend on a person who is mistaken or other evidence shows to be wrong.

One of the important roles of an employment lawyer assisting someone to provide a response to a written warning is to identify, as early as possible, the relevant information or evidence that validates the explanations of their client. The reason it is important to do it as early as possible is to ensure relevant witnesses are interviewed while matters are freshest in their mind, or to prevent other evidence from becoming lost or destroyed.

Initiating ‘without prejudice’ negotiations

Initiating confidential ‘without prejudice’ negotiations with an employer is something generally undertaken by a lawyer acting on behalf of an employee. Power imbalances may otherwise impede discussions between the employer and employee, particularly at a time when an employee is facing a disciplinary process.

The purpose of ‘without prejudice’ negotiations between employers and employees is to resolve an active or potential dispute as quickly as possible. When confidential negotiations end in a commercial agreement, real benefits can be achieved for both employers and employees, particularly in terms of managing reputational risks.

While confidential negotiations are not always possible or appropriate, their use as a complementary strategy in trying to resolve disputes can see quick resolutions to situations that may otherwise take months to resolve through litigation. Handled incorrectly, allegations of contract breaches, among others, can be made.

Seeking to reach a mutual agreement or negotiated settlement generally requires a clear understanding of your legal rights, obligations and options. Agreements of this kind often involve certain guarantees, indemnities or waivers, which can have real consequences when breached. For this reason, ‘without prejudice’ negotiations should always be handled with care and through lawyers.

Amongst the most important advice an employment lawyer can provide in the context of a workplace dispute is whether or not there is scope to resolve the dispute in a way that suits the interests or priorities of their client. Prior to consulting with a lawyer, people are often unaware of the full extent of their options, which, if not exercised at the right time, can be lost.

Accepting / disputing proposed disciplinary action

In some instances, an employee may simply accept their conduct fell below the appropriate standard, or that their performance needs to improve. When there is no dispute that there is a conduct or capacity issue that needs to be addressed, it may be critical to ensure there is a proper opportunity to address the issue. For example, the warning letter may suggest that termination of employment will be contemplated if the issue is not addressed. In such cases, it is critical for an employee to clearly understand what they need to do to avoid that from occurring.

Examples of what may be raised if the allegations are accepted include the following:

  • Workplace issues that have caused or contributed to the conduct or capacity issue in question. This may relate to issues such as workplace bullying, discrimination, harassment, or some other issue with a causal connection;
  • External explanations for why the conduct or capacity issue in question occurred. This may include mental health issues, personal issues that have arisen, or other events that place the concerns of the employer into proper context;
  • Any insight, training or programs that may be, or have been, undertaken to address the conduct or capacity concerns of the employer that are not already set out in the warning letter.

Whether or not it will be in an employee’s interests to raise all or any of the reasons for performance or other issues raised by an employer must be determined on a case by case basis. For this reason, it is always advisable for people who have received a written warning at work to get legal advice about their specific situation.

Effective Challenges to Written Warnings

The primary object of a response to a written warning letter is to persuade. To persuade your employer (or a regulator) about why your response should be accepted. If the objective of the employee is to appeal the warning, then the aim is to have it or its consequences put aside. Sometimes the objective is multi-layered, or shifts over time.

Instead of thinking about template “do’s and don’ts” when dealing with a written warning, adopting an approach driven with persuasion in mind is likely to be more useful. In some cases, a lawyer may advise their client to send more than one letter to an employer in response to a written warning, given ‘without prejudice’ correspondence may also be exchanged.

There are a number of hierarchical models of communication that may be adopted as a guide to persuasive communication. Lawyers often adopt an IRAC formula when analysing legal issues, whereas marketing experts may be more familiar with the AIDA formula. Such models can be useful in thinking about how to structure a response to a written warning at work, although caution should be exercised whenever seeking to follow any communication model.

Make the message clear, immediately

It can assist to make your message clear upfront. If a person cannot clearly articulate what they are saying or seeking, the person on the receiving end of the message may also fail to be clear about what is intended.

In essence, it should be clear what the purpose of the response is and the issues that will be addressed within. An opening that sets out the issues clearly will grab attention. The rest of the response should be devoted to convincing the reader that those statements are compelling.

Outline what allegations or issues are accepted or rejected

It is a common – and understandable – mistake that people make when acting for themselves to not properly acknowledge when mistakes were made. Sometimes, there is no way around it – a mistake occurred. In other cases, when misconduct or other disciplinary issues are raised, they are fully disputed.

If possible, it is important to be clear about what is disputed and what is not. In some cases, it is not possible, but in most it is. The reason it is important is that it will mark out the boundaries of how the issue may be remedied. If you dispute everything, everything is an issue. Narrowing the points in dispute can be a source of strength. One important matter employees often overlook in responding is raising wider issues that may have contributed to, or are at least relevant to, the allegation.

In addressing the issues accepted or rejected, it may be crucial to detail the information, witnesses or evidence that may tend to support the claims made. Is it a question of someone being mistaken, or missing data, or simply that an allegation has no basis? Beyond such issues, it can be important to outline any procedural flaws or issues of non-compliance by the employer in issuing the warning letter. For example, was there any kind of investigation into an allegation before findings about it were made? By being able to clearly define the allegations or issues in dispute, it is much easier to concentrate energy on those things that will make your response convincing.

Convincing responses are credible and reliable

A convincing response to a warning letter is both credible and reliable. While credibility concerns honesty, reliability may be different. An allegation may be honestly raised, but it may depend on a person who is mistaken or other evidence shows to be wrong. Equally, where a person can be shown to have lied about a particular issue, their honesty may be called into question to the point they have no credibility, even if the information they provide seems otherwise reliable (accurate).

Disputes regarding factual issues, such as whether allegations are truthful (ie, can be substantiated), must come down to an assessment of the credibility and reliability of the evidence. It means that if witnesses were not interviewed, evidence was not provided, information was not gathered, a distorted view may have arisen that led to the written warning being issued. In the case of a person being issued an unfair written warning at work, an employer relying on information that is not credible or reliable may see their job lost unnecessarily.

In responding to a written warning, care should be taken to gather the necessary information and present it in the most persuasive manner possible. For situations where the written warning is disputed, this may mean calling into question the credibility and reliability of evidence relied on by the employer, and emphasising the reasons other evidence should be accepted.

Identify the appropriate action to follow

In responding to a written warning, it may be important to state what action should be taken by the decision-maker. For example, if the ultimate position is that the written warning should be withdrawn, then that should be made clear. Alternatively, an employee may accept that a conduct or capacity issue has been demonstrated, such as to warrant the warning letter, but requests certain support or guidance to address or fix the issue.

Identifying the appropriate action to be taken helps draw a line in the sand. It may be a dispute about whether disciplinary action of any kind is warranted. Or, it may be limited to the type of support or time needed to address the concerns of the employer. Identifying the appropriate action to follow in many cases can narrow the issues in dispute.

Disputing Disciplinary Action

Receiving an unfair written warning can cause real stress. While some people may seek to engage a lawyer only “if the worst happens” (ie, dismissal), it often becomes harder, not easier, to change the outcome the farther things are along the road. For this reason, people who think they may need legal assistance about a written warning are often best served by getting legal assistance sooner rather than later.

If an employee is issued a warning letter by their employer, it is possible the issue can be remedied and the employee will remain a valued, long-term employee. In other situations, particularly where someone perceives a warning letter to be unfair or lacking bona fides, it becomes more complex.

In facing disciplinary action, employees may face a number of stages before they are potentially dismissed. Alternatively, they may be dismissed soon after receiving their first warning letter (if they are warned at all). It can therefore be helpful to know what options employees have to dispute disciplinary decisions.

Show Cause Letters

In Australia, employers often provide employees with a show cause letter prior to terminating their employment. The failure to allow an employee an opportunity to explain why they should not face disciplinary action, particularly dismissal, can lead to successful claims against employers. For this reason, any employee facing dismissal should get informed about how to effectively respond to a show cause letter.

Unfair Dismissal Claims

Unfair dismissal claims arise under the Fair Work Act 2009 (Cth), which covers the vast majority of employees across Australia through the National Employment Standards (NES). Unfair dismissal claims have a strict 21 day time limit to be lodged. In cases where an employee is eligible to make a claim, and the dismissal is harsh, unjust or unreasonable, a claim may be successful before the Fair Work Commission.

Discrimination Claims

Discrimination claims may be brought under anti-discrimination laws enacted by the Commonwealth or State, depending on the nature of the alleged discrimination. In Queensland, complaints may be initially referred to either the Queensland Human Rights Commission (QHRC) or the Australian Human Rights Commission (AHRC).

Breach of Contract Claims

Breach of contract claims are less commonly instituted in Australia, due to the availability of other, faster remedies through alternative processes, such as unfair dismissal claims. Unlike unfair dismissal claims, breach of contract claims often have legal costs consequences, where legal costs often follow the event. This means that if a party (employer or employee) loses a breach of contract claim, they may not only be required to pay their own legal costs but at least part of the costs of the other side. For this reason, breach of contract claims are generally only brought where there is no other reasonable alternative and it is considered there are strong prospects to litigate a claim.

Written Warnings at Work - Australia