Can I fire an Employee without giving them a Warning?

Many employers believe they must give an employee three warnings before dismissal. Others assume that calling conduct ‘serious misconduct’ allows them to dismiss the employee immediately.  And neither view is quite right.

New Zealand employment law does not set a fixed number of warnings that must be given before an employee can be dismissed. Depending on the circumstances, an employer may give an informal caution, a first warning, a final warning, or no warning before dismissal. However, every disciplinary decision must be supported by a good reason and reached through a fair process.

Do I have to give three warnings before I dimiss an employee?

There is no general law requiring an employer to give three warnings before dismissing an employee.  The ‘three warnings’ idea may come from old workplace practices or an employer’s own disciplinary policy. If your employment documents promise staged warnings, you will usually need to follow that process. If there is no agreed warning system, the number and type of warnings will depend on the facts.

Employment New Zealand confirms that there is no set number of warnings required before dismissal. The employer’s response must instead be fair, reasonable and proportionate.

What is the difference between misconduct and serious misconduct?

Misconduct is unacceptable behaviour that may justify disciplinary action but will not usually justify dismissal for a first incident. Examples might include repeated lateness, inappropriate language, misuse of the internet, or a minor failure to follow a reasonable instruction.

Serious misconduct is behaviour serious enough to undermine or destroy the employer’s trust and confidence in the employee and affect their ability to do the job. Possible examples include theft, fraud, violence, serious harassment, major dishonesty, deliberate serious safety breaches or attending work under the influence of illegal drugs.

When should an employee be given a warning?

A warning will often be appropriate where misconduct is proven but dismissal would be too severe.  For a first incident of ordinary misconduct, an employer might give:

• an informal caution for a minor, one-off issue;

• a formal written warning where the matter requires a clear disciplinary response; or

• a final written warning where the misconduct is serious, but not serious enough to justify dismissal.

A final warning may sometimes be appropriate without an earlier warning where the behaviour is serious but dismissal would be too harsh. Consider the harm, intention, service record, remorse, disciplinary history and how similar cases have been handled.

When can an employee be dismissed after a warning?

An employee may be dismissed if they commit further misconduct while a relevant final warning is active. In some cases, repeated similar misconduct following an ordinary warning may justify a final warning or dismissal.  Take care before relying on an earlier warning. Check that it:

• was issued through a fair process,

• clearly identified the concern and required change,

• warned the employee about the possible consequences of repetition,

• is still current, and

• relates to the new conduct closely enough to be relevant.

A warning for lateness will not normally support dismissal for an unrelated minor dress code breach. An expired warning may also carry little or no weight. 

Warnings should state how long they remain active. Six or twelve months is common, depending on the circumstances, but there is no automatic period that suits every case.

Do not treat a final warning as an automatic right to dismiss. Investigate the new allegation, consider the employee’s response and decide whether dismissal is reasonable.

When can an employee be dismissed without a prior warning?

An employer may be able to dismiss an employee without any earlier warning where serious misconduct is proven and dismissal is a fair and reasonable response.

This is sometimes called summary or instant dismissal. It usually means dismissal without notice. The word ‘instant’ can be misleading because it does not mean you can dismiss the employee on the spot. You must still investigate, disclose the concerns and relevant information, meet with the employee, hear their explanation, and genuinely consider alternatives before reaching a final decision.

What is the correct process for giving a warning?

A warning is disciplinary action. It should only be imposed after a fair process, not handed out during an angry conversation.

Check the agreement and policies

Read the employee’s employment agreement and the relevant disciplinary, conduct, safety or workplace policies. Follow any agreed process. Confirm whether the alleged behaviour may amount to misconduct or serious misconduct, but keep an open mind.

Investigate the concern

Gather the relevant facts, which may include documents, system records or witness accounts. The investigation should be balanced and as confidential as possible.

Put the allegations to the employee in writing

Clearly explain the alleged conduct, when it happened and why it may breach a rule or standard. Provide the relevant evidence. State the possible outcomes, give reasonable notice of the meeting and confirm the right to bring a representative or support person.

Hold the disciplinary meeting

Give the employee a genuine opportunity to respond and ask fair, open questions. If they raise significant new information, investigate it and let them comment on any new evidence.

Decide whether the allegation is proven

Consider all the information, the employee’s explanation and any mitigating circumstances. The decision-maker should be impartial.

Propose an outcome

If misconduct is established, decide what outcome you are proposing. The response must be proportionate. Possible outcomes include no action, an informal caution, a written warning, a final warning or dismissal.

Tell the employee the preliminary decision and reasons, then give them a reasonable chance to comment before making it final.

Confirm the final warning in writing

After considering the employee’s feedback with an open mind, communicate the final decision and provide it in writing. The warning letter should:

• state that it is a formal warning or final warning;

• identify the misconduct that has been established;

• explain why the conduct was unacceptable;

• state the behaviour or standard expected in future;

• explain what may happen if the behaviour is repeated;

• state how long the warning will remain active; and

• record any support, training or follow-up arrangements.

FAQs

Do I legally have to give three warnings before dismissal?

New Zealand law does not have a general three-warning rule. Your employment agreement or policy may require certain stages, but otherwise the appropriate number of warnings depends on the facts and the seriousness of the conduct.

Can I dismiss an employee after one warning?

Possibly. Dismissal may be justified if the employee commits further relevant misconduct while on a valid final warning, or if the new conduct is serious misconduct. You must still complete a fair process for the new allegation.

Can I give a final warning without giving a first warning?

Yes, in some circumstances. A final warning may be proportionate where the misconduct is serious but does not justify dismissal. Follow a fair process and explain why a final warning is the reasonable outcome.

Can I dismiss an employee immediately for serious misconduct?

You may be able to dismiss without notice after serious misconduct is proven. You cannot safely dismiss on the spot without a fair investigation and disciplinary process. “Summary dismissal” removes the notice period; it does not remove the employee’s right to fair treatment.

How long should a warning stay active?

There is no fixed legal period. The warning should state a reasonable expiry period based on the conduct and your policies. Six or twelve months is common. Be cautious about relying on warnings that are old, expired or unrelated.

Can I use an old warning for a different type of misconduct?

Usually not. A prior warning should be relevant to the new concern. If you intend to rely on any earlier warning, tell the employee and give them a chance to respond to its relevance and validity.

Under section 103A of the Employment Relations Act 2000, a dismissal or disciplinary action is assessed by asking what a fair and reasonable employer could have done in all the circumstances. The employer must have sufficiently investigated, raised its concerns, given the employee a reasonable opportunity to respond, and genuinely considered that response.

Following a sound process helps you make a better decision and creates a clear record if the outcome is challenged. Get in touch with Employer Direct today.  They can help plan an investigation, prepare correspondence, attend meetings and assess a fair outcome. Early advice is easier and less costly than repairing a flawed process.   Employer-Direct.co.nz | 0800 612 355

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