Expired Warnings Can Still Bite

A warning from your employer is a form of disciplinary action. It puts you on notice that your conduct or performance is not meeting your employer’s expectations.

Viewed positively, it can be a learning tool. It will help you to understand what your employer expects of you and how you can achieve those expectations.

Of course, it can be very hard to see warnings that way when you are on the receiving end. The reality is, no one likes being disciplined, and warnings may bring you one step closer to being dismissed.

Once you are in that situation, you would hope that the warning will not be held against you forever – especially if you turn things around and are able to satisfy the expectations your employer has of you.

Yet warnings can be taken into account longer than you might expect – even beyond their stated expiry date.

HOW WARNINGS CAN BE RELIED ON

The decision to dismiss is one that must be fair and reasonable. That is the test your employer must meet.

They will be more likely to act fairly and reasonably if they have already warned you at least once that your conduct is unsatisfactory.

That is the power of a warning. It puts you on notice that you could be dismissed for similar behaviour. You cannot say that you had no idea that you might lose your job if you did something you were already warned not to.

As I have explained elsewhere, there is no mandatory series of verbal or written warnings that must be issued before your employer moves to dismiss you (though they may be bound by internal policies that specify such steps). The test is only whether it was fair and reasonable to dismiss – and a fresh warning for similar behaviour will make it more likely that your employer is dismissing for good reason.

WARNINGS DO EXPIRE

However, warnings expire after a period of time. If a warning has expired, your employer could not fairly rely on it to justify your dismissal on its own.

When does a warning expire? There is no clear test, but 12 months is often used as a rule of thumb for cautious employers.

In many cases, employers will put an expiry date on the warning itself so that you can be clear about how long it will remain in effect for. This is usually set out in your employer’s disciplinary policy, which they must adhere to if they have one.

CAN YOUR EMPLOYER REFER TO AN EXPIRED WARNING?

Your employer cannot rely on an expired warning to dismiss you if, had they not relied on that warning, they would not have dismissed you. In other words, an expired warning cannot be the sole factor that justifies your dismissal.

Nevertheless, in deciding whether to dismiss you, your employer must take into account all the relevant circumstances. Part of those circumstances may include prior warnings that were issued against you for similar behaviour. That may even include expired warnings.

The upshot is, even if a warning has expired, it may not be unfair for your employer to take it into consideration as part of the overall circumstances.

However, your employer would have to give less weight to an expired or stale warning than one that remained current at the time of your dismissal.

WILL THE WARNING STAY ON MY FILE?

Your employer may want to refer to any warning issued in the past as part of the relevant circumstances affecting their decision whether to dismiss you. Therefore, they may keep a copy of any warning they issue against you on your personnel file.

The only situation where they cannot do that is where they have told you that they will not keep the warning on your file, perhaps after the expiry date.

They may tell you this when giving you the warning itself or it may be a direction that is contained within an internal disciplinary policy your employer has bound themselves to abide by.

CONCLUSION

No one likes getting a warning. But just because they may expire or go stale, that does not necessarily prevent your employer from referring to them down the track.

Of course, they must do so fairly, which means the warning can only be given as much weight as is fair taking into account such things as the length of time since it expired and whether it relates to the now conduct complained of.