Warnings before Dismissal of an Employee: How Many?
A mistake that Australian employers sometimes make is to create unnecessary “restrictions” in their workplace policies. A workplace “policy” is a set of rules of procedures created by the business in respect of its business practices.
One question I am often asked by my clients is “How many warnings do I need to give an employee before I can dismiss them (under Australian Law)?”.
There is a long held misconception that an Australian employer must give 3 warnings before dismissal of an employee. However, surprisingly to some, this is what I refer to as a “HR myth”.
Some employers mistakenly include in their workplace policies a “three warnings rule” prior to dismissal. In reality, however, such a restriction could leave an employer in a difficult position when an employee engages in serious misbehavior that results in dismissal of that employee, as opposed to a warning, and where at least three prior warnings had not been issued.
Where an employer fails to follow its own policy and procedure, an Industrial Tribunal can consider whether an employers dismissal policy has been followed and, where it is not followed, take a dim view of that employer’s failure, sometimes resulting in a ruling that the dismissal was unfair and the employee reinstated or awarded damages.
Well then, how many warnings are necessary before an employee can be dismissed in Australia?
Under the The Fair Work Act there is no prescribed minimum amount of warnings that must be issued for a dismissal to be considered fair – there is no hard and fast rule. The employer must always make a judgement call, based upon the facts of the case, as to whether a misbehaving employee can be terminated without further warning (or in some case without any warning at all).
The key advice here is that the employer should not unnecessarily limit their discretion to terminate an employee by prescribing a minimum amount of warnings that must be issued before dismissal.
Legal Advice should be sought where you are unsure of what would be considered fair in the circumstances.