Do I Need to Be Warned Before Getting Fired? A Clear Look at Warnings and Dismissal in New Zealand

anne-mariedolan
Sep 1
5 min read

Let’s imagine you’ve done something you shouldn't at work. Maybe you were rude, broke a rule, or your performance slipped. You're wondering: does my boss have to warn me before firing me? Is it part of New Zealand employment law to get a verbal or written warning before a dismissal?

Warning. Two warning signs on a piece of machinery.

Understanding the Law: Fair and Reasonable Process

In New Zealand, employment relationships are guided by the Employment Relations Act 2000 (ERA) which requires that employers and employees must deal with each other in good faith meaning open, honest, and fair dealings at all times.

If an employer wants to dismiss someone, they must ensure the decision is both justified in substance with a good reason for dismissal, and justified in process with a fair way of getting there. This is called the Test of Justification under section 103A of the ERA. A judge or authority will ask: Would a fair and reasonable employer do the same in those circumstances?

In short, the law doesn't say you must get a warning. But it does demand a fair process. Whether a warning is needed depends on the situation especially whether it was misconduct or something more serious.

Misconduct vs. Serious Misconduct: What’s the Difference?

Misconduct is when someone breaks rules or fails in how they work. This is not great, but maybe fixable. Serious misconduct, on the other hand, is a major breach that seriously damages trust or safety like theft, violence, fraud, or serious safety violations.

With misconduct, a verbal or written warning is common and often expected. With serious misconduct, an employer may need to act immediately without warning because the act itself may destroy the trust needed for you to keep your job. So, whether warnings are needed depends on how serious the situation is.

Are Verbal or Written Warnings Required by Law?

There is no legal requirement to give any specific number of warnings before dismissing an employee. In cases of serious misconduct, dismissal without warning is entirely possible and lawful. Warnings (verbal or written) are tools to encourage improvement and not a mandatory step. They do often help show whether a disciplinary or dismissal process was fair.

Saying that, many workplace policies or employment agreements may require warnings. If your employment contract says warnings are needed, your employer generally must follow that process.

Legally, warnings are not always required but in practice, they are common and often expected, unless the conduct is severe.

What Makes a Warning Fair and Effective?

If an employer decides to issue a verbal or written warning, it must follow a fair and reasonable process. They must investigate fairly, give the employee a chance to respond to allegations and communicate clearly what the warning means, what it is in response, what needs to change, and what could happen if things don’t improve. The warning should give the employee the opportunity to improve especially if it relates to performance issues giving them a fair chance to fix things.

Warnings also should be recorded properly. Even a verbal warning can be written down, and written warnings should go in an employee's file, so there’s no confusion about what was said and the intention of the warning. A formal warning should also follow the Test of Justification (section 103A) too which applies to warnings, not just dismissals.

You may have heard or assumed that employers must give three warnings: verbal, then written, then final before firing someone. That’s not what the law says. This “three-step” model is a workplace custom, not a legal rule. The real questions are:

Is the action fair and reasonable under the circumstances?
Was the process fair?
Did the employment agreement or workplace policy require warnings?

If serious misconduct, such as theft, violence, fraud or severe safety breaches, occurred, dismissal without warnings can happen. But if the issue was minor, warnings are usually part of a fair process even if not mandated by law.

Written or verbal warnings should generally have a time limit. Warnings are meant to give the employee a chance to improve. Keeping a warning "alive" forever would be unfair. Most employers will include a time period during which the warning remains active. Typically this might be 3 to 6 months for verbal warnings, 6-12 months for written warnings, and up to 12 months for final written warnings. Once that time passes, assuming there have been no further issues, the warning usually expires and shouldn't be relied on again.

If your employment agreement or workplace disciplinary policy sets a time limit on warnings, your employer must follow that timeframe. If they try to rely on an expired warning to justify a dismissal, it could be challenged as procedurally unfair. If you receive a warning, you should consider asking how long will it stay on file, what do I need to do to improve and what happens if I improve (or don’t)? If a past warning is being brought up again months later, ask if it’s still active and whether the process is fair.

Case study - expired warning

A recent matter dealt with by one of our advocates involved an employee who was dismissed exactly one year to the day after receiving a written warning. The employer relied on the earlier warning to justify moving directly to dismissal. However, under New Zealand employment law, the Authority looks not just at whether a warning is described as written or final, but whether reliance on it is fair and reasonable in the circumstances.

In this case the employer treated the warning as valid even though it had effectively expired, and there was no fresh investigation or disciplinary process tied to the dismissal decision. The employee was not invited to a new meeting or given the chance to respond to the allegations that led to termination.

From the employee’s perspective, if they are dismissed without a proper process, if an expired warning is relied on, or if the employer ignores the warning system in the agreement, they can raise a personal grievance. In this matter the employee was able to challenge both the substantive justification and the procedural defects.

Does an employer have to give a warning before dismissal?

The short answer is: not always. New Zealand law focuses on whether a dismissal is fair and reasonable, not on whether you got warned three times. Warnings can be vital tools for fairness but they’re not always required by law, especially when trust is broken through serious misconduct.

However, if your employment agreement or your workplace policy sets out warning steps, those must be followed. Whether a warning is issued or not, a fair process is key: investigation, communication, opportunity to respond, clarity, and good faith.

If you find yourself in a situation where you are being dismissed without any prior warnings, or a previous warning is being used against you long after the original incident occurred, it is worth seeking advice to see if the decision and process has been fair and reasonable. Get in touch with an employment advocate for a free consultation today. MathewsWalker.co.nz | 0800 612 355

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