Can you fire someone without a written warning?

As an employer, you may come across rare situations where you need to take disciplinary action with your staff.

It’s not always an easy situation to handle, and it’s important to understand your rights and responsibilities as an employer when it comes to warnings and disciplinary action.

We asked Andrew Jewell, the principal lawyer with Jewell Hancock Employment Lawyers, about the legalities of giving warnings, and whether the need to give three written warnings is fact or fiction.

It’s a commonly held assumption that three written warnings are required by Australian law before employers can dismiss an employee. This is not the case, says Jewell.

“The ‘three warnings rule’ is one of the most common misconceptions in employment law – it simply does not exist,” he says. “The reason that some organisations use this approach is to avoid risk in unfair dismissal claims, but unfair dismissal matters don’t require multiple warnings.”

The only requirement for any warning to be given is in performance-based dismissals in unfair dismissal proceedings. “If an employee is dismissed for poor performance and has never received a warning that they are underperforming, then it is likely that dismissal will be deemed to be unfair,” Jewell says.

Warnings tend to be issued when an employee is underperforming or has an unsatisfactory performance. This is usually related to an employee’s capacity to do the job rather than their conduct. “The warning should clearly outline how the employee is underperforming, what they need to do to reach an acceptable level of performance, the timeframe for improvement and the consequence of failing to improve,” Jewell says.

Employers can also issue warnings for misconduct that doesn’t justify dismissal but is serious enough to be stopped, and can be used to justify dismissal if the behaviour or misconduct continues.

The Fair Work Commission defines serious misconduct as employee conduct that causes serious risk to the health and safety of another person or to the reputation or profits of the business, or deliberately behaves in a manner that is inconsistent with continuing their employment. Examples of serious misconduct include theft, fraud, assault, refusing to carry out work duties or being drunk at work.

“The starting point in assessing whether you can dismiss an employee is the employment contract,” Jewell says. “If the contract requires you to follow a dismissal process (which could require issuing warnings) then it must be followed, however employment contracts rarely implement these measures.

“More commonly employment contracts simply stipulate the amount of notice required to be provided in the event of termination.”

There is no legal requirement specifying that employees must be given a particular number of written warnings before being dismissed. However, it’s worth noting that unfair dismissal claims have regularly been upheld by tribunals where an employee did not have a chance to respond to performance concerns or to improve their performance over a reasonable period of time.

Employees dismissed for performance or conduct reasons need to have completed six months’ service (or 12 months if they are employed by a small business with fewer than 15 employees) and earn under the high-income threshold (or be covered by a modern award or enterprise agreement).

If an employee is entitled to unfair dismissal protections, Jewell notes that a warning appears to be relevant only in a performance dismissal and even then, it is only a consideration. “There is certainly no requirement for several warnings and there is no distinction between written or verbal warnings,” he says. “Although written warnings are stronger from an evidentiary perspective.”

While employers don’t legally need to give employees three warnings before dismissing them, it is important to give employees a chance to fix any performance or conduct issues. Therefore, giving employees at least one warning in writing before ending their employment is a good idea.

If you need more information or support in managing employees through disciplinary processes, speak to your HR representative, get in touch with the Fair Work Ombudsman or contact an employment lawyer for advice.

Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.

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