Employee Final Warning Letter

What is an Employee Final Warning Letter?

An Employee Final Warning Letter is used when an employer needs to give a final warning to an employee for something they did. It is a simple way to communicate the relevant issues to the employee. Importantly, it may also be retained by the employer as evidence that the employee has been afforded due process. If the employee ends up being dismissed, and later claims that the dismissal was unfair, then the employer will find it helpful to have this evidence on file.

This letter is designed to be used as a final warning to the employee. It is not intended to be used as a first or second (but not final) warning.

For a warning that is not the final warning (such as a first or second warning) use an Employee General Warning Letter.

How to deal with underperforming employees?

There is no specific process that has to be followed. However, employers should be mindful that if the employee makes a claim for unfair dismissal to the Fair Work Commission, the Commission will consider if the employee was warned about their performance or conduct issues, and given a reasonable opportunity to improve their performance and conduct.

Therefore, it is helpful for employers to have copies of letters on file, to show that they gave the employee a number of written warnings and opportunities to improve.

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 or conduct issues and provide a strategy for improvement (such as deadlines for improvement, and quantifiable goals for the employee). Provide a copy of an Employee General Warning Letter to the employee.

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

3. If performance or conduct still does not improve, have a third meeting with the employee. Advise the employee that if their performance or conduct does not improve by a particular date, their employment may be terminated. Provide this 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.

What types of behaviour can this Letter be used for?

This letter can be used to provide warnings to employees in relation to their unsatisfactory job performance or conduct.

Can employees be terminated without warning?

If an employee has engaged in serious misconduct such as theft, fraud or assault then the employer may be permitted to terminate them without warning.

However, even in the case of serious misconduct, the employee is entitled to procedural fairness. The employer should conduct an investigation and ensure there is evidence to support the allegations against the employee. They should also present the allegations to the employee and give them the chance to explain.

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 a 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 a 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 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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