When are workplace warnings required?

When are workplace warnings required?

 

There is a common myth in Australian workplaces that an employee cannot be dismissed unless he or she has been previously warned. Many Australians also believe that 3 warnings must be given before a dismissal. This is entirely incorrect.

It would be ludicrous if an employer was prevented from dismissing an employee for stealing as a servant, the legal expression for theft by an employee from an employer.

 

Warnings do however become relevant when an employee is dismissed for unsatisfactory performance; see sec 377(e), Fair Work Act 2009.

Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job than their conduct.

Performance includes ‘factors such as diligence, quality, care taken and so on’.

The Commission must take into account whether there was a period of time between:

  • an employee being warned about unsatisfactory performance, and
  • a subsequent dismissal.

 

This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.321 There is no legislative requirement specifying that an employee must be given a certain number of written warnings before being dismissed for poor performance. For example, there is no rule that an employee must receive three written warnings.

However, industrial tribunals over the years have consistently upheld unfair dismissal claims where an employee has not had an opportunity to respond to performance concerns or to improve their performance over a reasonable period of time.