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Three warnings: fact or myth?

Good question…clarifying whether three warnings is actually required under workplace law is something we’re asked all the time.

Short answer?

There is no legal requirement obligating an employer to provide three warnings – or even one – before terminating the employment of a worker.

Factors to consider

What an employer should be able to demonstrate is that they have followed a fair and reasonable process prior to making a termination decision. The Fair Work Act uses the wording “harsh, unjust or unreasonable” when considering whether a dismissal is fair or unfair.

If the matter relates to underperformance – and not serious misconduct, which can be an immediate termination level offence – best practice employers typically offer the employee an opportunity to address the performance issue…and retain documentation recording the incident, level of warning, steps to modify performance and timeframe for review.

Should the employee later be dismissed and then make application for unfair dismissal, the Fair Work Commission will generally take into consideration that a due disciplinary process has been followed.

The full nerd explanation

Under Section 387 of the Fair Work Act 2009, the Commission will consider the following when considering whether a dismissal is harsh, unjust or unreasonable:

(a)  whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)  whether the person was notified of that reason; and

(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)  if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)  the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)  any other matters that the FWC considers relevant.

The Bare Bones recommendation

Despite there being no legal requirement, many employers have retained the “three strikes” approach as part of their internal policies and procedures. We’d recommend employers consider the criteria used in the Fair Work Act as an alternative as it offers greater flexibility when considering individual employee underperformance or conduct situations. Ask yourself: do I really want to wait for someone to commit three offences before having the option to terminate?

Like some help with employee performance or tailoring your HR policies to ensure you have the right ones for your business? Bare Bones Consulting specialises in getting things right first time…and at a value for money price. Call us today or contact us here.

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Note: Bare Bones Consulting provides HR services for employers. Employees seeking advice on workplace concerns should contact the Fair Work Infoline on 13 13 94.