Employment law myth No. 2: “You need to give someone three warnings before you can dismiss them”
“Three strikes and you’re out” may have some application to the laws of baseball, but does not generally apply in the field of employment law.
For employees who have a right to claim unfair dismissal*, the Fair Work Act 2009 provides that one matter the Fair Work Commission must take into account when dealing with such a claim is “if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal” (s 387(e)). However, there is nothing in the Act that deals with how many warnings an employee must be given. Sometimes more than three might be appropriate, sometimes less. In cases of very serious misconduct or poor performance it may be permissible to dismiss an employee without any warning at all (like being out for a duck in cricket, rather than being struck out in baseball?).
It may also be the case that an employment contract, workplace policy or enterprise agreement prescribes that a certain number of warnings must be given before an employee that can be dismissed. Failure to follow these requirements could also give rise to a claim. It is therefore very important to check all such documents before taking any decision to terminate an employees’ employment on the grounds of performance or misconduct.
(*IE they have completed the minimum period of employment and one or more of the following applies: (a) they are covered by a modern award, (b) an enterprise agreement applies to their employment or © they earn less than the “high income threshold”.)
For any advice on rights and obligations concerning termination of employment please contact: [email protected]swaab.com.au or [email protected]swaab.com.au
Read myth no. 1, “It’s illegal to give a bad reference” here.