What are your Rights when you get a Warning at Work?

Nobody likes getting told off at work and getting a formal warning about your performance or behaviour can feel scary. You might worry that it will cost you your job, or stay on your record for ever. Find out what getting a warning means, how long it lasts, if a final warning means you’ll definitely be sacked, and what rights you have as an employee under New Zealand law.

What is a warning?

A warning is a formal step your employer takes when they believe your performance or conduct is not up to standard, but the behaviour or issue isn’t serious enough to justify immediate dismissal.

A warning notifies you that something in your work (behaviour, performance, reliability) is below what’s expected.  It can be verbal or written. But written warnings are recommended so there is a record.  It should clearly explain what the issue is, what needs to be improved, by when, and what will happen if it doesn’t improve.  It must be part of a fair and reasonable process under the Employment Relations Act 2000 (ERA) in New Zealand.

Common reasons for warnings include:

• Repeated lateness or absence without a good reason,

• Poor performance (not meeting agreed standards), and/or

• Minor misconduct (e.g., misuse of equipment, unprofessional behaviour).

If the issue is very serious, such as theft, violence, or serious misconduct, your employer might skip a warning and go straight to dismissal.

How long does a warning last?

One of the biggest questions people have is how long does a warning stay on my record? This will depend on the wording of the warning letter and the particular circumstances.

Ideally the warning letter will state a time‑frame for how long it will stay live.  For example it may state “this warning remains in force for 6 months." If no time‑frame is specified, then after a certain period the employer may no longer be able to rely on that warning as a reason for future disciplinary action.  The common practice is that 6 to 12 months is a useful benchmark for how long a warning remains clearly relevant. Warnings older than about 12 months may be considered stale in some cases and less justifiable to rely upon.

What should you check if you have received a warning?

• Does the warning letter or policy say “this warning remains valid until …”?

• Has the employer’s policy or employment agreement set out how long warnings remain?

• Have you improved the issue (e.g., attended training, changed behaviour)? If yes, that helps.

• Has a different type of misconduct happened later? If so, the old warning may or may not be relevant depending on similarity of the conduct.

  
  

If you’ve been given a warning, ask for a copy. See whether there’s a time limit stated. Keep your own records of what improvements you make, such as training attended, discussions you’ve had. This will help you later if the employer relies on the warning for further action.

Does a final warning mean you can be sacked?

Final warning often sounds like the last step before losing your job. But in New Zealand employment law the picture is a little more nuanced.

A final warning typically means if the behaviour or performance issue happens again, or fails to improve within the set time, then the employer may proceed to more serious disciplinary action and potentially dismissal.  It is more serious than a first warning. The employer must clearly communicate that this is a final warning and what the consequence will be.

A final warning does not guarantee or automatically mean you'll be sacked. What matters legally is whether any subsequent dismissal, or other action, is justified.  Did the employer have a fair reason, and did they follow a fair process?  Factors that matter include:

• Reasonableness: Was the “final warning” given in circumstances where a fair and reasonable employer would do so?

• Process: Was there a proper meeting, investigation, opportunity to respond, etc?

• Subsequent conduct: Did the employee commit the same or similar misconduct/performance issue again? Or fail to improve? If yes, the warning may be valid support for action. If not, relying on the warning may be unfair.

• Timing: If the final warning is older than a year and then used against you for behaviour that is new and different, it may not be justifiable.

So if you are facing a final warning:

• Ask: What behaviour or performance issue must I correct?

• Ask: By when? Are the expectations clear?

• Ask: What happens if I don’t meet the expectation?

• Make a plan: keep a record of your improvement, get feedback, ask for support/training if needed.

What are your rights if you’ve been given a warning?

When you receive a warning from your employer, you do have rights. It’s important to know them so you can protect your interests.

Right to a fair process

Under the ERA, any disciplinary action, including warnings, must be justified and carried out in a fair way.  This means that the employer should have investigated the alleged issue, let you know what the concern is, given you a chance to respond or explain, and then considered your explanation before making a decision to issue a warning or other disciplinary action.  

Right to be aware of the consequences

A warning should clearly say that your employment is at risk if things don’t improve.  If you’re facing a final warning, the employer should make it clear what final means in your situation.

Right to challenge unfair action

If you believe the warning was unfair,for example, because the employer didn’t follow a fair process, or the issue was unfair, you may have grounds to raise a personal grievance under the ERA.  You must normally raise a personal grievance within 90 days of receiving the warning.  

Right to improvement not punishment

Warnings should be used for the purpose of correcting employee behaviour or performance, not punishing employees who have done the wrong thing.  

What should I do if I have been given a warning?  

There are a number of things you should do to protect yourself if you have been given a warning.

Read the warning carefully

Check if it is written (preferably yes) and whether it states the exact issue your employer has identified, what you need to change or improve, a date or time frame for improvement, and the consequences of failing to improve.  If any of those are missing, you should ask for clarification.

Understand the expectations

You should clearly understand what good performance or behaviour looks like from now on. Ask your manager or employer what they expect, by when and how they will measure success.  

Ask what help or support is available

If your performance or behaviour problem is because you didn’t have proper training, or you’re unclear about the job expectations, ask for support. It is in your employer’s interest, and yours, to help you succeed.

Keep your own records

Write down things like dates and times of meetings or discussions, what you have done to improve, and any feedback you received.  This will help you later if things don’t go well.

The improvement period

Use the time you’re given to improve and demonstrate the changes you have made. Ask your manager for regular check-ins to make sure you are on the right track.  .

Ask for confirmation once you have improved 

If you’ve met the expectations, it’s good to ask specifically if the issue has now been resolved and get confirmation in writing that the warning is now considered completed or closed.  

If things go wrong again

If you find yourself facing further issues or a new disciplinary step, remember, just because you had one warning, you’re not doomed. What matters is whether the process remains fair and the employer’s action is reasonable.

Frequently Asked Questions (FAQs)

Does a verbal warning count?

Yes.  A verbal warning can count. However, it’s best practice for the employer to record it in writing so there’s a clear record of what was said, what you need to improve, and what happens next. 

My warning letter says “this warning will stay on your file for 12 months”. Does that mean after 12 months it disappears?

It means that’s the employer’s stated time‑frame during which they expect it will be active. After 12 months you may still have it on your file, but if the employer tries to rely on it after that time, they may have difficulty justifying doing.  

Can I be dismissed even if I’ve only had one warning?

Yes.  Dismissal is possible even with only one warning, or even none, if the conduct is serious enough. What matters is whether your employer’s action is fair and reasonable.  

If I get a final warning, is my job not safe?

It means you’re on notice. The final warning says you must improve, and if you don’t, or you repeat the behaviour, the employer may be justified in taking more serious action. But it’s not a guarantee of sacking. What matters is how you respond, and whether the employer acts fairly.

The warning was for one type of behaviour, and now I’m being warned for a different type of behaviour. Can my employer rely on the earlier warning?

Possibly.  But if the second behaviour is very different to the first, then relying on the earlier warning could be unfair. 

What can I do if I think the warning I received was unfair?

You have the right to ask your employer about the warning and raise your concerns. You may be able to raise a personal grievance if the warning was unjustified (i.e., the employer didn’t act fairly, or the reason wasn’t valid). You should act quickly as personal grievance claims must generally be made within 90 days.

A warning lets you know your employer thinks something is wrong with your performance or conduct, but it is also an opportunity for you to improve.  Warnings shouldn’t last forever and a 6 to 12 month time frame is common.  If you are given a final warning, this signals that you are on notice, but it doesn’t mean you’re guaranteed to be sacked. What matters is your improvement and the fairness of the process.  Even if you have done the wrong thing, you have rights to be treated fairly and reasonably by your employer. If you have been given a warning, take it seriously. Ask what is expected of you, use the opportunity to improve, and make sure you understand the process.

Being warned doesn’t have to mean the end of your job. If you respond properly, use support, and keep a clear record of your improvement, you’re in a much stronger position.  If you have received a warning and it feels unfair or unreasonable, get in touch with a legal expert.  Contact Mathews Walker today for a free consultation.  MathewsWalker.co.nz 0800 612 355

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