Font size:
Giving Warning Before Dismissal
by Hew Soon Kiong
The probationer is undergoing a trail period. He or she has to be appropriately supervised. The employer must give the employee the opportunity to prove himself or herself and give warnings if standards are not met.

If the employee’s work in unsatisfactory, the employer should talk to him or her to find out the reasons behind that.

This can sometimes boost the employee’s spirit and encourage him or her to work harder. A warning is a fair step that needs to be taken to avert a dismissal. This step is also morally encouraged as everyone ought to be given a second chance.

In the event of a dismissal due to continued poor performance, once should always show that adequate warnings were given. Dismissal for unsatisfactory work or incompetency should be preceded by warnings.

Failure to give warning may not only render the dismissal unfair but may jeopardise the employment contract. Thus, the court may set aside the dismissal.

If the employee has been warned and given the opportunity to improve, the worker may decide to leave on his or her own volition.

If the worker fails to improve after warnings, then the employer can establish substantive grounds for a dismissal due to lack of performance.

The employer’s intended warning must be clearly communicated. Any attempt to soften the impact of the warning or dress it up as something else might fail to communicate the warning effectively.

Once warning has been given and there is still no improvement in work performance, the dismissal of an employee would then be justifiable.

The court observes that if the work of an employee was not satisfactory, the employer should have counseled, warned, reprlmanded or even suspended the employee before the company dismisses him or her.

A warning is not a magic word that creates ground for dismissal. Rather, it is a step that is taken to avert dismissal. If there is room to improve, warnings should definitely be given.

In other words, the employee has to be given the chance to enhance his or her work to the satisfaction of the employer.

The warning may either be verbally served or given in writing. However, it is preferable for the warning to be in writing, to avoid future disputes.

Written warnings concerning an employee’s poor performance is a norm. Such warning letters provide employers with the evidence to rebut any allegations that sufficient warnings were not given to the employee.

The written warning should be clear and unequivocal; It should also include the shortcomings of the employee.

However, a warning is not meant to be a mere formality that automatically empowers the employer to dismiss an employee who fails to measure up.

The employer must give the employee sufficient opportunity to improve himself or herself. If new operation processes or methods are introduced, there must be genuine efforts to train the employee to become familiariesd with the new operations.

Sometimes, failure to give the employee adequate warning may not automatically make the dismissal unfair. This is especially so if the employer can show that the employee is incapable of improving or already knows what is expected or that a warning would make no difference at all.

In the case of skilled or professional employee, certain implied standards are expected of them in the running of everyday business.

When they demonstrate incompetence or the inability to establish the expected professional skills, the employer is not bound to retain them.

In the case of probationer aspiring to be at the top management or of an employee expected to render professional services, providing advice, guidance and correction would suffice.

There is no justification for the court to impose the added duty of issuing oral or written warnings.

If the employee is at the managerial level, the necessity for direct warnings would be less apparent. An employee holding a management position would often know the employer’s expectation. In such a case, failure to attain the desired standards may warrant dismissal without warning.

The courts have begun to develop laws that provide greater protection for employees, particularity in the area of job termination as this involves depriving a person of his or her livelihood.

As mentioned earlier, an employee needs to be given reasonable time for improvement. If possible, a prudent employer should offer training, counseling and provide re-deployment.

International courts and labour organisations recognize the principle of fairness and rule of warning. However, there are circumstances where the requirement for proper warnings can be waived as seen in cases where employees are in the managerial position.

The court does not express the view that an employer cannot terminate the position of any employee if there is prove that they cannot cope with the expected duties.

The court however expresses its view that an employee whose work performance is unsatisfactory should be pre-warned of the consequences of non-improvement.

In conclusion, it is an accepted principle that the need for warning is less apparent in the case of those in the senior management position. However, to justify a dismissal based on unsatisfactory performance, the employer has to provide sufficient evidence.

It is a principle of industrial jurisprudence that the burden of proof lies with the employer. The employer has to show why the employee was dismissed.