Under section 535 of the Fair Work Act 2009 and Part 3-6 of the Fair Work Regulations 2009, Australian employers must keep prescribed employee records for 7 years, including a record of how each employment ended. The Regulations don't list "performance warning emails" by name. But the email trail around warnings, meetings and termination is what the Fair Work Commission asks to see in an unfair dismissal claim. If it has been deleted, you lose the argument that matters.
Picture it: a former employee lodges an unfair dismissal application 14 months after leaving. The Commission directs you to produce the warnings, the performance discussions and the termination decision. Your payroll records are perfect. The manager who sent the warning emails has left, and her mailbox was deleted 90 days later.
What the Fair Work rules actually require
Section 535 requires employers to make and keep employee records. The Regulations (regs 3.31 to 3.44) prescribe the content: pay, hours worked, leave, superannuation contributions, individual flexibility arrangements and, where employment has ended, a record of the termination, including who initiated it and what notice was given. Records must be kept for 7 years. Failing to make or keep them is a civil penalty contravention. Under section 557C, if you can't produce records in an underpayment dispute, the burden of proof moves to you.
That's the part most HR teams know, and it's form-shaped: timesheets, payslips, leave balances.
The email obligation comes from a different direction. Several Fair Work Act provisions put the burden of evidence on the employer:
- Unfair dismissal (s 387): the Commission considers whether there was a valid reason, whether the employee was told the reason and given a chance to respond, and whether warnings were given about unsatisfactory performance. Those are questions about correspondence.
- General protections (s 361): in an adverse action claim, the employer must prove the action was not taken for a prohibited reason. That requires contemporaneous evidence of the actual reason.
- Recruitment: general protections and discrimination provisions also cover prospective employees, so shortlisting and rejection emails can become evidence.
The Regulations tell you what forms to keep. The Act's evidentiary rules tell you which emails you'll wish you had. Treat both as one retention obligation. Time limits also run long: underpayment claims can be brought up to 6 years back (s 544), and unfair dismissal applications must be lodged within 21 days of dismissal, so the dispute starts quickly even if your records are needed later.
What most small firms actually do
HR files are usually well kept. The personnel folder has the signed contract, the final payslip and a termination letter. The email around them lives in individual mailboxes.
Typical arrangements are a manager's inbox, a PST file on a shared drive, or a mailbox deleted when the account was closed. Each has the same flaw: retention depends on whoever happens to hold the email. Managers delete things. Departed staff lose their accounts. PST files get corrupted or forgotten, which we cover in PST Files: Your Hidden Compliance Time Bomb.
The departure problem is the worst of these, because the manager who wrote the warnings is often gone by the time the claim arrives. We cover that in Do You Need to Keep Employee Emails After They Leave?
What good looks like
An audit-ready approach to HR email has a handful of properties:
- Continuous capture. Mail is archived as it is sent and received, not when someone remembers to export it. Sent mail is included, because warnings and termination decisions are mostly outbound.
- Independence from the user. A manager can't delete the only copy, and an account closure doesn't remove the history.
- Tamper-evident storage. If you need to prove a warning email was sent on a given date, you need an unaltered copy with headers and timestamps intact.
- Full metadata. Sender, recipients (including BCC), dates and attachments all matter. A warning letter attached to an email is only as credible as the message around it.
- Fast retrieval. When the Commission sets a deadline, you need to search by name, date range and keyword in minutes, not rebuild an old mailbox.
- A retention period that matches the longest realistic exposure. Seven years covers the prescribed records and the 6-year underpayment window.
It also needs to be able to pause deletion when a dispute arises. Litigation Hold vs. Standard Retention explains how that differs from your normal policy. If you're ever served with a subpoena, this account of the scramble shows what the absence of all this looks like.
The practical path forward
In 30 minutes: Find out who holds HR-related email today. Check what happens to a mailbox when someone leaves, and how long deleted items are kept. Many firms discover the answer is "30 days."
This month:
- Stop deleting mailboxes of departed staff until their email is archived.
- Write a one-page retention rule: 7 years minimum for employment-related correspondence, counted from the end of employment.
- Ask managers to send warnings and performance communications by email (or confirm verbal ones in writing), so a record exists.
- Move PST files and old exports into a managed archive.
Ongoing: Use an archive that captures mail continuously so none of this depends on individual habits. AutoArchive Mail does this: it copies incoming and outgoing mail into a separate, searchable archive that staff can't alter. If you want to test it against your own mailboxes, you can Start Free Trial.
Bring in an employment lawyer when a claim is lodged, or if you're unsure how long a particular record category must be kept in your circumstances.
What this article doesn't cover
This applies to employers in the national workplace relations system. Some state-system employers, such as certain sole traders and partnerships in Western Australia, are covered by different legislation. Privacy obligations for retaining candidate and employee personal information, and WHS record requirements, also sit outside this article. For a firm with a handful of staff and few terminations, a disciplined manual process may be adequate. This is general information, not legal advice.
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