A common theme I see when employers come to me for support with employee issues is the belief that a “verbal warning” has already been given and should count as part of a disciplinary process. Often, this is raised when an employer is looking to escalate matters and rely on previous steps taken. The difficulty is that, in many cases, what is being described as a verbal warning will not stand up to scrutiny as part of a fair and defensible process.
In a New Zealand employment context, a verbal warning is not simply a conversation where concerns are raised or frustration is expressed. For a warning to form part of a valid disciplinary process, it must follow a fair and reasonable process consistent with the principles set out in the Employment Relations Act 2000. This includes clearly putting the concerns to the employee, giving them an opportunity to respond, genuinely considering that response, and then making a decision. If those steps have not been followed, it is very difficult to rely on the “warning” later.
Another common issue is the lack of documentation. Employers will often say they have given a verbal warning, but there is no written record of what was discussed, what the expectations were, or what the consequences might be if the behaviour continued. Even though the term “verbal warning” suggests something informal, it should still be confirmed in writing. Without that, there is no evidence that the warning occurred in a structured and fair way, and it becomes problematic to rely on it as part of any escalation.
It is also important to distinguish between informal feedback and a formal warning. Day-to-day management conversations, coaching, or raising concerns in the moment are all appropriate and often encouraged. However, these are not the same as issuing a warning. A formal warning signals that the matter has reached a disciplinary threshold. If that distinction is not clear, employees can reasonably argue that they were not aware of the seriousness of the issue or the potential consequences.
From a risk perspective, relying on an informal or undocumented “verbal warning” can undermine the integrity of the entire process. If an employer moves to a written warning or termination and references earlier steps that were not conducted properly, this can weaken their position significantly. The focus will quickly shift from the employee’s conduct to whether the employer followed a fair process.
A more robust approach is to treat a verbal warning as part of a formal process, not an alternative to it. This means advising the employee in advance that an investigation meeting is being held, outlining the concerns, offering the opportunity for a support person, and then following up the outcome in writing. The written confirmation does not need to be lengthy, but it should clearly record the issue, the expected improvement, and the consequences if the behaviour is repeated.
Getting this right does not mean creating unnecessary formality, but it does mean being deliberate and consistent. When employers take the time to follow a proper process and document outcomes, it provides clarity for the employee and significantly reduces risk for the business.
If you are unsure whether previous steps taken with an employee will stand up as part of a disciplinary process, or you want to ensure your approach is fair and defensible from the outset, it is worth getting advice early.
If you are dealing with an employee issue and are unsure whether your previous steps will hold up, or you want to make sure you get the process right from the outset, get in touch us. Early advice can make a significant difference to both the outcome and the risk to your business.