Warnings in the fair work system

One of the mandatory factors which the Fair Work Act requires the Far Work Commission to take into account when determining whether a dismissal is relevantly unfair is whether the employee was first warned about his or her conduct or performance and whether the employee was afforded a reasonable opportunity if contesting the reason for dismissal. It is put this way in a recent case.

“s.387 (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

McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd5 sets out that the purpose of a warning about unsatisfactory performance must be to identify the performance that is of concern and must make it clear that a failure to heed the warning places the Applicant’s employment at risk. Such a warning gives an employee an opportunity to improve in those areas identified as requiring improvement. An integral part of such a warning must be to clearly identify the areas of deficiency, the assistance or training that might be provided, the standards required and a reasonable timeframe within which the employee is required to meet such standards.

In order to constitute a warning for the purposes of s.387(b), it is not sufficient for the employer merely to exhort their employee to improve their performance.6 The warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”7

Further, an employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made.8 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.9

he Applicant was required to attend a meeting on 23 May 2020 which was recorded and at that time he was made aware of the matter and indeed signed the Record of Interview. During this meeting the reason for the meeting was explicit and he was able to provide responses. He was then stood down. Noting the evidence particularly at paragraph [53] of this decision, a further meeting was held on 29 May 2020. At this meeting it was made clear to the Applicant that the Respondent was considering terminating his employment, the basis for such, and he was granted an opportunity to provide reasons why his employment should not be terminated. The Applicant provided his responses and reasons, however the Respondent concluded to terminate his employment and accordingly read and provided a termination letter which outlined the reasons for dismissal.

I am satisfied that Mr Stewart was notified of the valid reasons for the dismissal and had the opportunity to respond.”

Stewart v Linfox Australia Pty Ltd  [2021] FWC 354 delivered  25 January 2021 per Lake DP