CAUTION: Issuing a Warning to Employees!!

We would like to draw your attention to the dangers of issuing warnings to staff without following due process. We answer a significant number of calls every week looking for advice on a performance issue and on so many occasions discover that they have given warnings incorrectly. At best this makes the warning null and void. At worse it is opening the company up to legal challenge.

If there is a performance issue that arises in the workplace that may potentially require a warning /sanction there is a process that must be followed first. In summary that process is:

You cannot informally issue a staff member with a warning, including a verbal warning. What we mean by this is calling someone aside at a meeting, outlining their misdemeanours and issuing a verbal warning that stays on a staff file for some time. As this has potential career implications and is serious for the employee there is a particular process that must be followed before any level of warning is given to an employee. Employees are entitled to the application of the Principles of Natural Justice. This means they have

  • the right to know the case against them
  • the right to respond
  • the right to representation
  • the right to due consideration
  • the right of appeal

Correspondence setting out the request to the employee to attend an investigation or discipline meeting needs to be clearly set out in writing.

If you have an issue with an employee the matter arising should be investigated. Following the investigation confirm there are grounds to move to the discipline process. Next step is to hold the disciplinary hearing and adjourn that meeting to consider the information from the investigation and discipline meetings, any documentation, statements etc. Then reconvene the disciplinary hearing and then and only then issue the level of warning.

All warnings including a verbal warning should be issued in writing and the letter confirming the level of warning and the right of the employee to appeal the warning. The letter should reference who the employee should make the appeal to.

You should ensure that you follow the procedure in your discipline policy and adhere to any timelines unless mutually agreed by both you and the employee and/or their representative. There is also a requirement to correspond with the employee at all stages of this process and ensure they receive copies of relevant documentation and records.

If you do not follow this process correctly any warning you give will be null and void. In the event that a case is taken to the Workplace Relations Commission [WRC] and you have not followed due process and the principles of natural justice you will be found to have breached procedures irrespective of the performance issue arising.

The above relates to issues that may result in a warning. Managers of course can manage performance using other strategies and techniques and prevention (having good performance management systems in place) is always better than cure (having to invoke the discipline policy)

We are just a phone call way to support you in ensuring you undertake this process correctly.

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