Employers are entitled to take disciplinary action, including warnings
Employers are entitled to take appropriate disciplinary steps against employees that engage in poor performance or misconduct. This will generally take the form of (in order of increasing severity) informal counselling, a verbal warning or a written warning, and may ultimately manifest itself in dismissal.
It isn't uncommon for employees to dispute the validity of warnings, particularly where they are some way into a performance management or improvement process and their ongoing employment is on the line.
Employers should:
- take into consideration issues or complaints raised by employees in relation to warnings (for example, if the employee claims the employer has made an error in relation to a material factual matter that led to the warning being issued); and
- be mindful of any more formalised right of appeal or challenge that may exist under (for example) an enterprise agreement or binding policy.
However, outside of these matters, the mere fact that an employee has a different opinion from the employer about whether the warning is valid or justified does not render the warning null and void.
What if the employee refuses to take a warning letter?
Sometimes a refusal by an employee to accept a warning letter manifests itself in them refusing to physically take a copy of the letter from their employer.
The key here is to maintain a paper trail. Give the letter to the employee by hand during a meeting, ideally in front of a witness. Then send the employee the letter by email, confirming in that email that it was handed to them in the meeting. This way, even if the employee refuses to take a copy of the letter, there is clear evidence it has been given to them in the first instance.
The employee refuses to sign the warning letter!
Signatures are a useful way of confirming that an employee has received a copy of the warning letter. However, as noted above, there are other ways of proving that the letter has been issued.
When asking an employee to sign a warning letter, the language on the letter should say something to the effect of: "I confirm I have been issued with, and understand the content of, this letter".
This helps avoids a debate about whether the employee agrees with the warning and makes it more likely that they will sign the letter. In some cases the employee will elect to add a handwritten note to their signature confirming that they dispute the validity of the warning. As above, in most cases, this will be neither here nor there. If an employee refuses to sign the letter even in these circumstances, you can rely on the 'by hand and email' process above to prove the issuing of the warning.
Beware: Warnings are not a silver bullet
The key takeaway is that an employee's refusal to accept and/or sign a warning does not, in and of itself, render that warning invalid.
However, it is critical to also remember that, as an employer, you should be in a position to justify the issuing of the warning based on the underlying facts and evidence, particularly if you hope to rely on these warnings in relation to any subsequent dismissal.
In summary, warnings (whether or not an employee agrees with them) are an effective way of managing poor performance and conduct and mitigating the risk of an unfair dismissal claim. However they are not a silver bullet and they need to be reasonably defensible in the circumstances.
If you require further information or have any queries in relation to this series, please contact Sina Zevari.
This is a series - this article is part 2.
Part 1 can be found here >
Part 3 can be found here >
Part 4 can be found here >
