Employee Final Warning Letter

What is an Employee Final Warning Letter?

An Employee Final Warning Letter is designed to be used by an employer as a final warning to the employee. It is not designed as a first or second warning to an employee. For a warning that is not a final warning, use an Employee General Warning Letter.

There are a series of letters that may be used for underperforming employees. These letters can be used in the following sequence:

1. An Employee General Warning Letter.

2. If employer wants to provide a second or third warning to the employee - use the Employee General Warning Letter again.

3. Employee Final Warning Letter.

4.Letter of Termination of Employment (General).

What is the difference between an Employee General Warning Letter and an Employee Final Warning Letter?

An Employee General Warning Letter is designed for a first or second warning to an employee but is not designed for a final warning.

On the other hand, a Final Warning Letter is only designed to be used for final warnings and contains different language which highlights the fact that the next step will be termination of employment.

Is it mandatory to have an Employee Final Warning Letter?

An employer is not generally required by law to provide a certain number of warnings, or to provide formal written warnings, to an employee before terminating their employment. However, if the employment is terminated, and the employee makes an unfair dismissal claim, then the Fair Work Commission will pay attention to whether the employee was warned about their job performance issues before being terminated, and whether they were given the opportunity to improve their performance. Therefore, in order to protect against such a claim, employers usually take care to provide a number of warnings, as well as clear directions about how to improve. Most employers do this in writing, so that they have evidence to produce if they ever need to prove that they were fair to the employee.

Further information about what an employer must do can be obtained from the website of the Fair Work Ombudsman. Small businesses may also need to consult the Small Business Fair Dismissal Code.

It is important that the employer understands its obligations in relation to this matter. If an employer breaches some of these obligations, then it could face penalties for unfair dismissal, and may be unable to remove the employee.

What are the prerequisites of an Employee Final Warning Letter?

The employer may first need to check for any particular procedures that the employer is required to follow, and any minimum notice periods. Minimum standards for employment are set in the National Employment Standards. However, if there is an applicable industrial instrument (such as an award or a registered agreement), then this may set additional requirements. In addition, an Employment Agreement or a workplace policy might also set additional requirements. In any case, the employer will need to comply with whatever requirements are most favourable to the employee. The National Employment Standards are only the minimum standards.

Once the employer is satisfied that it has followed the appropriate procedures and is entitled to terminate the employee's employment, the employer may prepare the letter. The employer should ensure that the letter contains enough information so that the employee knows what has gone wrong, and what he or she can do to correct it.

What has to be done once an Employee Final Warning Letter is ready?

Once this Employee Final Warning Letter is ready, it should be signed by the employer, dated, and provided to the employee. Many employers choose to have a meeting with the employee to discuss the matter, and provide the letter to them at the meeting.

There is no specific process that has to be followed, but many employers choose to use the following process (even if not required by law):

1. Have a first meeting with the employee, to discuss the performance issues, provide a strategy for improvement (such as deadlines for improvement, and quantifiable goals for the employee). Provide an Employee General Warning Letter to the employee.

2. If performance has not improved by the due date, have a second meeting with the employee to advise that performance has still not improved. Provide the employee with a second written warning (using an Employee General Warning Letter again).

3. If performance still does not improve, have a third meeting with the employee. Advise the employee that if their performance does not improve by a particular date, their employment may be terminated. Provide an Employee Final Warning Letter to the employee, confirming these details.

4. If performance still does not improve, have a fourth meeting with the employee to terminate employment, and provide a copy of a Letter of Termination of Employment (General).

What must an Employee Final Warning Letter contain?

The employer should ensure that the letter contains enough information so that the employee knows what has gone wrong, and what he or she can do to correct it. Therefore, the letter may include:

• Full name of employer and employee.
• The date of the letter.
• Details of the problems with the employee's job performance.
• An explanation of the steps that the employee should take to rectify these problems.
• An outline of what has been discussed previously regarding the employee's job performance, and the opportunities the employee has had to improve it.
• Confirmation that this is a final warning.
• A warning that if the employee's performance does not improve by a particular date, then the employment will be terminated.

Which laws are applicable to this Employee Final Warning Letter?

The Fair Work Act 2009 (Cth) and the National Employment Standards (NES) apply to most employment situations in Australia.

However, in addition, many employment situations are also governed by modern awards or enterprise agreements. If such an award or agreement applies, then that will set out some additional minimum standards with which the employer must comply.

In addition, general principles of contract law, as provided by the common law, will apply to any employment contract.

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