When it comes to the law around written warnings, it’s normal to have questions.
Maybe you’re wondering:
We asked Andrew Jewell, the principal lawyer with Jewell Hancock Employment Lawyers, to talk us through written warnings, plus what’s legal and what’s not in this situation.
A written warning is a document an employer gives to an employee to formally indicate a concern about their conduct or performance in the workplace.
The idea behind a written warning is to let you know there are concerns, how you can address those concerns and what might happen if your conduct or performance doesn’t improve.
Lots of people believe three written warnings are required by Australian law before an employer can dismiss or ‘fire’ an employee. This is not the case.
“The ‘three warnings rule’ is one of the most common misconceptions in employment law. It simply does not exist,” Jewell says.
Jewell says the reason some organisations use the three written warnings approach is to avoid risk in unfair dismissal claims, but he notes that even unfair dismissal matters don’t require multiple warnings.
The only time warnings are required is in performance-based dismissals in unfair dismissal proceedings. “If you are dismissed for poor performance and you never received a warning that you were underperforming, then it’s likely your dismissal will be deemed to be unfair,” Jewell says.
Warnings tend to be given when employees are underperforming or when their performance is unsatisfactory.
If you’re given a written warning, it should give you a clear idea of where your performance hasn’t been good enough, and how you can improve. “The warning should clearly outline how you are underperforming, what you need to do to reach an acceptable level of performance, the timeframe for improvement and the consequence of failing to improve,” Jewell says.
Your employer 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 your behaviour or misconduct continues.
According to the Fair Work Ombudsman, serious misconduct is when an employee 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:
To answer this, it’s best to look at your employment contract first to see what it says around dismissal.
Jewell says if the contract requires your employer to follow a dismissal process – which could include written warnings – then the employer has to follow it. But he says employment contracts rarely implement these measures, and more often they just state the amount of notice that’s required if your employment is terminated.
There’s no legal requirement to say that employees have to get a certain number of written warnings before being dismissed. But 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.
If you’ve been dismissed and you believe it was unfair, you can lodge an unfair dismissal application with the Fair Work Commission. It must be received by the Commission within 21 days of your dismissal taking effect.
You can check if you’re eligible to lodge an unfair dismissal application by taking the unfair dismissal eligibility quiz.
If you have received a warning that you believe is unfair and your employment is terminated, you may have grounds to make a claim for unfair dismissal. If you need more information or support, speak with your business’ HR department if there is one, reach out to your union, get in touch with Fair Work Australia or contact an employment lawyer for advice and support.
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.