Warnings can only be given if a fair and reasonable disciplinary process has been followed to establish that misconduct has occurred.

An employer will usually use a warning if an employee’s actions do not amount to serious misconduct.  Warnings can be used as an alternative to dismissing or demoting an employee, or to mark the misconduct, in case it happens again.  

The employer should first establish the facts (with the employee having an opportunity to respond to any allegations) and then tell the employee the outcome of that part of the process before moving on to consider what any penalty should be.

Once again the employee should have an opportunity to respond to any proposed penalty before it is imposed.

Warnings can come in the form of written and verbal warnings.  Although there is the option for the employer to give verbal warnings, all warnings must be recorded in writing, with a copy given to the employee and a copy put on their file, so that there are no misunderstandings going forward between the employer and the employee.

Warnings are often a caution to the employee that there is a possibility of dismissal if their conduct or performance that lead to the warning is repeated again. 

The warning should make it clear that it is a warning and it will indicate what might happen to the employee if there is any further misconduct of a similar type. See more on this point below.

A warning should be communicated early after the misconduct takes place (subject to the proper process above) and the employer needs to ensure that the employee understands the reasons for the warning.

A warning must also be reasonable and in proportion to the action which caused it.

Sometimes there will be multiple warnings before a final warning is issued, but if the misconduct is serious enough a dismissal can result even though there have not been any prior warnings.

Employers must be careful that when giving a warning, and referring to a previous warning, that the previous warning is not too old, as it may be unfair to the employee.

It is also important for the employer to state how long a warning should continue. 

The warning cannot be relied on forever in most cases and each case will depend on its own facts. The general rule is that it may be hard for an employer to rely on a warning that is over 6 months old for minor matters, and 12 months old for more serious matters. Sometimes a final permanent warning will be able to be given (which does not expire).

Warnings for unrelated behaviour can also not be relied on.  For example, if the employee committed serious misconduct such as fighting, and a warning was given for that, then an employer may not necessarily rely on a further warning for something such as lateness to work in order to dismiss the employee on the strength of that being a second warning. 

In some cases, an employer may rely on an unrelated warning when the action by the employee is similar enough to previous warnings. 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

 


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