Whoop!  Whoop!  Warning!  Warning!

So, you took a deep breath, and finally sat down and spoke to your employee.  Cleared the air.  Finally let them know what they were doing (or not doing) wrong.

It didn’t work.  The crap continued.

It may well be time for an official, formal warning.  And it needs to be a valid warning.  Just like the ones the Fair Work Commission are always talking about.  Because they are the government body who will be putting your warning under the microscope.

There are reams of case law around what may be considered a valid warning, and circumstances may vary a little from case to case.  And contrary to popular belief, there is no such thing as a set amount of warnings.  Although a small company (under 15 employees) only has to give one valid warning.  But there are some fundamentals which need to be followed by employers, regardless of the size of the company.

The warning must be written down.  A verbal warning is only as good as the piece of paper it’s written on.

The warning must identify what the employee had done wrong.  This may be conduct related, or performance related, but it should be obvious to the Fair Work Commission what the employee got a warning for.  And this should include dates, times, and it helps to refer to previous discussions and warnings.

The warning must make it clear that the employee may lose their job if there is no improvement.  The Fair Work Commission likes a good, clear cause and effect relationship.  This also means that any other employee who did the same thing would end up with a warning.

If you have an EBA or a policy that gives a process, then you need to follow this.  Many a company has had a slap on the wrist from the Fair Work Commission for writing their own rules, and then not following them.

The employee must know what the meeting is about and how important it is.  A person who is blindsided cannot properly prepare and defend themselves.  An important principle for the Fair Work Commission is “a fair go all round”.

There cannot be a predetermined outcome from this meeting.  Imagine trying to explain yourself, a mistake you had made, illness, you pour your heart out, only to be slapped with a warning anyway.  What chance did you have?  You need to be able to hear the employee’s side of the story, possibly investigate and check facts with coworkers, shift records and CCTV footage before making up your mind that a warning is actually warranted.  Maybe even just talk it over with a trusted person.  Then invite the person back for your decision.

You cannot unreasonably refuse a support person.  A support person cannot be a lawyer acting in a legal capacity.  Apart from that, it can be anyone.  A union rep, a workmate, a parent.  Anyone.  And the support person’s role is essentially to be moral support for the employee.

There must be enough time between the warning and termination for performance to actually improve.  This is not a “tick a box” exercise.  Targets must be reasonable, support and resources must be given.

The warning should be countersigned by the employee and a copy given to them.  If the employee refuses to sign the warning, then make a note of this, rather than trying to wrestle the person into submission.

On a more personal note, there are other things that can be done to improve this process.  Make sure the room is private, and you won’t be interrupted.  Ensure a box of tissues and a glass of water is handy; these do get emotional.  If someone does seem overwrought, take a short break, then resume.  Make sure you can escape if the person becomes violent.  If a union rep does point out flaws in your process, listen.

This is not an exhaustive list, and steps necessary may vary from situation.  If in doubt, please do talk to an expert.