Termination of Employment : Part I – Warning Letter to Employee

December 6, 2016

A warning letter is useful to confirm and address a performance or conduct issue with an employee. Such performance issues may include, for example:

• violating work rules or regulations or disobeying the employer’s orders;
• continuously coming too late to workplace;
• insults against employer or colleagues;
• too frequent sick leave;
• alcohol on workplace;
• unexcused absence;
• work refusal;
• poor performance; or
• unauthorized secondary employment.

You usually issue a warning letter to the employee after meeting with them to discuss the problem. Following this process can help resolve issues before the situation becomes worse.
There is no legal requirement to provide formal written warnings or a certain number of warnings. However, to determine whether an employee was unfairly dismissed, the Labor Court will consider if the employee was:

• warned about performance or conduct issues, and
• provided a reasonable opportunity to improve their performance and conduct.

Theoretically a verbal warning in presence of a supporting person is allowed, but it is not recommendable. Because in court it has less evidential value for receiving and the observance of formal requirements (censure and warning function).
Please note that warnings may not be appropriate in some cases of serious misconduct. The immediate termination of employment may be necessary in such circumstances.
The warning shall be effective for a period of not exceeding one year from the date the employee commits the offense.
Following is our suggested proceeding for the formal warning of an employee:

Step 1: define and consider the problem

Firstly, identify the performance or conduct issue. Think about the seriousness and duration of the problem and what kind of actions you want to take to address it.

If applicable, review policy or contract article applicable to issue (e.g. Sick Leave; Leave of Absence; Corrective Action/Discipline/Dismissal.)

Step 2: meet the employee

The following meeting with the employee is important to:

• identify and resolve issues before the situation gets worse;
• explain your expectations of the employee; and
• agree on solutions to improve the situation.

It is best practice to let the employee know the purpose of the meeting in advance so they can adequately prepare for the meeting.

Always document the details of any performance or conduct meeting held with an employee.

Step 3: prepare the letter of warning

The warning letter should include:

• concrete and precise description of the performance or conduct issue (the employee must recognize it);
• warning that the employer will determined the contract or other consequences if the employee does not change his behavior;
• what has been discussed with the employee about the issue;
• a plan for the steps the employee needs to take; and
• a reasonable timeframe in which the changes or improvements need to take place.

Step 4: provide the employee with the warning letter

The warning letter should be provided via post or personally.

Ensure that the employee gets the warning letter and if handed over personally, document the details of providing the letter (the time, the date, who was there etc.).

Ask the employee to sign a copy of the letter and return it to you for your records (please note that employees are not required by law to sign a copy of the letter) and keep a copy of the letter for your records.

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