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 (c) they earn less than the ​“high income threshold”.) 

For any advice on rights and oblig­a­tions con­cern­ing ter­mi­na­tion of employ­ment please con­tact: sro@​swaab.​com.​au or rbo@​swaab.​com.​au

Read myth no. 1, ​“It’s ille­gal to give a bad ref­er­ence” here.