Can employees challenge a written warning?


A written warning is a document issued by an employer to an employee indicating that the employee is at risk of dismissal due to unsatisfactory performance or conduct. A warning is often used to support a decision to dismiss and should therefore be treated seriously by employees.


How should a warning be given?

When issuing a warning, employers must identify the relevant aspect of the employee’s performance or conduct that is of concern. For example, failure to meet key performance indicators or a significant safety breach.

A warning must make it clear to the employee that their employment is at risk unless their performance or conduct improves. It may contain an action plan with specific targets and a period for the employee to demonstrate an improvement, so it is important to act quickly if you are issued a warning.

Employees should be given the opportunity to respond to any warning about their capacity or conduct and have any questions answered or issues clarified. If any formal meetings take place, employees may request to bring a support person.


What can employees do about a written warning?

There is no universal law in Australia that requires an employer to issue a certain number of warnings before they can dismiss an employee. Accordingly, if you have received one, you should not automatically assume that more will follow before a dismissal occurs.

Employers usually have the discretion to issue written warnings unilaterally, meaning they can often be issued with little to no external scrutiny. However, when a warning has been implemented for an unlawful reason, or is part of a general pattern of workplace bullying, an employee may be able to make an application to the Fair Work Commission.

When evaluating a dismissal matter where warnings are involved, the Fair Work Commission will consider whether there was a period of time between an employee being warned about unsatisfactory performance and their dismissal. This period gives the employee time to understand their employment is at risk and to take steps to improve their performance.

For example, in the case of Dean v Sybecca Pty Ltd t/as Sleepy Lagoon Hotel [2010] FWA 8462, an employee was successful in their unfair dismissal claim following dismissal for performance and conduct issues because it was found that the employee was never expressly warned that his employment was in jeopardy.

If you receive a warning that you think is unfair or inaccurate, the best thing you can do is to seek advice from an experienced employment lawyer. A lawyer will be able to advise how best to respond and assist with challenging or negotiating the terms of the warning or making any relevant applications to the Fair Work Commission.


Written by Trent Hancock

Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.