As an employer, navigating the terrain of disciplinary action with your staff can be challenging. It’s crucial to understand your rights and responsibilities when it comes to issuing warnings and taking disciplinary action. 

To shed light on these legalities, Andrew Jewell (principal lawyer at Jewell Hancock Employment Lawyers) recently gave his opinion in an article published by Seek.com as he clarified the commonly held belief about the necessity of three written warnings before dismissal.

We thought it was very insightful for business owners and employers, so we thought we should share it with you. While I am sure you are aware this article is NOT a substitute for getting legal or professional advice, it is definitely food for though. You can find the original article here.

The Myth of Three Written Warnings

A prevalent misconception in Australian employment law is that employers must provide three written warnings before they can lawfully dismiss an employee. Andrew Jewell clarifies, “The ‘three warnings rule’ is one of the most common misconceptions in employment law – it simply does not exist.” This practice, often adopted by organizations, aims to mitigate the risk of unfair dismissal claims. However, unfair dismissal matters do not mandate multiple warnings.

Legal Requirements for Warnings and Terminations

Warnings are only legally required in performance-based dismissals within the context of unfair dismissal proceedings. Jewell explains, “If an employee is dismissed for poor performance and has never received a warning that they are underperforming, then it is likely that dismissal will be deemed unfair.”

Issuing Warnings for Performance and Misconduct

Warnings are typically issued for underperformance or unsatisfactory performance, focusing on an employee’s capacity to fulfill their job duties. Jewell advises, “The warning should clearly outline how the employee is underperforming, what they need to do to reach an acceptable level of performance, the timeframe for improvement, and the consequence of failing to improve.”

In cases of misconduct that do not justify immediate dismissal but are serious enough to warrant attention, employers can issue warnings. These warnings can later support a dismissal if the misconduct continues.

The Fair Work Commission defines serious misconduct as behavior that poses a significant risk to health and safety, damages the business’s reputation or profits, or demonstrates a clear inconsistency with continued employment. Examples include theft, fraud, assault, refusal to perform work duties, or being intoxicated at work.

Dismissing an Employee Without a Warning

The starting point for determining whether an employee can be dismissed without a warning is the employment contract. Jewell notes, “If the contract requires you to follow a dismissal process (which could require issuing warnings), then it must be followed. 

However, employment contracts rarely implement these measures.” Generally, contracts specify the notice period required for termination rather than the need for warnings.

No legal stipulation requires a specific number of written warnings before dismissal. However, unfair dismissal claims have often been upheld when an employee did not have the opportunity to address performance concerns or improve over a reasonable period.

Handling Unfair Dismissal Claims

Employees who claim unfair dismissal due to performance or conduct reasons must have completed at least six months of service (or 12 months for small businesses with fewer than 15 employees) and earn below the high-income threshold or be covered by a modern award or enterprise agreement.

Jewell emphasizes that while a warning is relevant in performance-based dismissals, it is not a strict requirement, and there is no mandated distinction between written or verbal warnings. “Written warnings are stronger from an evidentiary perspective,” he adds.

Best Practices for Employers

While three written warnings are not legally required, it is prudent to provide employees with at least one written warning before dismissal. This approach not only fosters fairness but also strengthens the employer’s position in potential disputes.

For more information or assistance in managing disciplinary processes, consult your HR representative, contact the Fair Work Ombudsman, or seek advice from an employment lawyer.

By understanding the legal framework and best practices surrounding disciplinary actions, employers can confidently navigate these complex situations, ensuring fairness and compliance with employment laws.

Conclusion

We hope this article has been helpful for you and it shows that it is not as simple as saying ‘I gave my employee three warnings, I’ve done all I need to do’. Sometimes there are occasions you can proceed start to dismissal, other times you need to take other measures before you consider that possibility, even if written warnings have been provided.

If you need further advice about whether your business or organization’s policies are compliant with current HR requirements, we urge you to contact us. We have many years of experience guiding employers and business owners through the minefield of employee performance management. 

You can call us on 0408 897 079 or email us at suzanne@performanceadvantage.com.au

Source:  Can you fire someone without a written warning? – SEEK Hiring Advice