Giving a Formal Warning the right way

As HR Consultants, we are asked to advise on the how, when and what of giving an employee a warning....a lot.  It may seem simple enough – you are the business leader, your employee is behaving poorly or not delivering so you bang out a letter and put them on notice.  Right?  Well yes, if you want to get hit with action by Fair Work, or completely disengage an employee.   But if you want to do it the right way which will protect your business and show that you have been fair and followed process, and you are genuinely focused on trying to get the employee to do what is required, read on…

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Process Schmocess
It’s your business and you should be able to do what you want, when you want right?  But we know that clients of HR Staff n’ Stuff want to do the right thing by their team, and they want to follow the law in order to protect their business.  The two are not mutually exclusive.  Whilst we understand it can be frustrating when you have a team member who has done the wrong thing, sometimes there may be a valid reason behind the bad behaviour so following a fair process may uncover a very solvable issue.  You will likely end up with a re-engaged employee, a broader team that sees you as a thoughtful and realistic leader or at the very least you will have the documentation that shows you made every attempt to provide procedural fairness before taking any disciplinary action. 

The process for a warning
Roger has been at it again – he’s showing up late, he’s mouthing off to his supervisor, his work is sloppy and you have had enough.  There are two paths you can take here.  Well three, but we don’t ever recommend simply ignoring bad behaviour in the hope that it will improve!

One option is to give a verbal warning or implement a performance improvement plan (PIP) designed to get him back on track.  Take Roger aside and let him know that his behaviour is not acceptable.  Cite examples and tell him he needs to improve and that if he doesn’t, the next step will be to move to a formal disciplinary  process.  Make some notes about your conversation and document the behaviour.  Best case, Roger was just being a selfish brat and he pulls up his socks and no more issues.  Worst case, the behaviour continues but you have documented examples and notes about an informal conversation or an implemented PIP where you highlighted the issues and gave him an opportunity to improve.

The formal warning process is more structured. These days Fair Work cares equally about the reason for disciplinary action / termination and the process followed. You may have solid reasons to take action, but Fair Work will find against you in these circumstances if you didn’t provide procedural fairness. 

Let’s assume Roger chose to continue his bad boy antics.  It’s impacting your business, it’s impacting his colleagues and enough is enough.  Firstly, you need to advise Roger that you would like to have a meeting with him to discuss concerns regarding his behaviour. Usually this is a 24 hour notice period. Keep it fairly simple – this is not the time for laying out the detail.  Advise him of the time of the meeting and  inform him that he is allowed a support person at that meeting.  For some employees, this can be a wake up call and they respectfully accept the meeting request, show up, work through the issues, open up about their challenges if there are any, and then get on with improving their behaviour and that’s the end of it.  Roger isn’t that person.

Important to note – you cannot ask someone to attend a meeting and then hand them a warning letter. You cannot pre-determine the outcome of the meeting.  

So Roger is angry.  Let him be angry.  If it is affecting the workplace, send him home on full pay until the time of the meeting.  Protect your business, your employees and yourself.  Once you get to the meeting, calmly and clearly outline the issues using specific examples.  Clarify the expectations of the role and the policies your business has in place in regards to behaviour, punctuality, and so forth.  Roger may at this point decide to let you know that he is dealing with a major personal issue and he is near breaking point.  Straight away, you now know there is a reason why a previously solid employee became a major pain in the neck and you now have the opportunity to work through solutions that you as a business leader can offer in terms of support – reduced hours, different starting time, extended leave with or without pay and so on.  You may not be able to provide support as the business may not be able to carry any of these options, but you may be able to understand where the issue stems from and work through what you can achieve together to improve the situation.

Alternatively, Roger may just have a toxic attitude and doesn’t see that what he was doing was wrong.  Or does see what he’s doing wrong, but really doesn’t care!  Either way, you need to outline what you expect from him, a reasonable time frame for changes to occur and what the consequences may be if these changes are not made .  And before you make any decision on whether to provide him with a formal warning or not, you need to fully consider his responses to the concerns put to him. 

From there, you need to check in and ensure Roger has all the tools needed to make positive change within the determined time.  If he still refuses to improve, you now have the documentation to prove you have followed a fair and reasonable process and you may have to move forward with terminating Roger’s employment.  It’s a myth that you need to provide three warnings, but it is true that you need to show you’ve followed process, that you’ve provided a fair and reasonable opportunity to improve and that the termination was justified (not harsh, unjust or unreasonable) in the circumstances.  

Sometimes these situations do result in you having to remove the employee from your business and even when you have followed process, they will hit you with an unfair dismissal claim.  If you’ve done it the right way, and communicated the right things, you will have a better position from which to defend the claim. 

To summarise – in order to provide a formal warning you must:

• Provide the employee with notice of the meeting. Tell them what it is about, any likely outcome and that they are welcome to bring a support person. Try and provide at least a day’s notice.
  
• At the meeting out your concerns to the employee and provide an opportunity for them to respond.
  
• Consider all responses provided.
  
• After considering these, make your decision. If your decision is to provide a formal warning, then tell the employee this, and then follow up by providing a formal warning letter, outlining the concerns and the expectations moving forward. The employee does not have to sign acceptance of this warning letter. Provide the employee with a copy and place a copy on their employee file.
  
• Have a follow up a week or so later to provide feedback – positive reinforcement or address any ongoing deficiencies…
  
• Do NOT pre-determine the outcome by having a written warning pre-prepared!  Danger Will Robinson. 

Formal warning processes can be tricky but we can assist you.  If you need assistance in managing a difficult employee or even getting your company policies up to date so you can establish behavioural expectations within your business, give the HR Staff n’ Stuff team a call and we can help you work through best practice options.

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