Contrary to popular belief, there’s no legal requirement in Australia to issue three written warnings before taking disciplinary action against an employee.
While some well-meaning employers include this practice in their internal policies (effectively creating a self-fulfilling prophecy), it’s not a legal obligation for everyone else.
This means adhering strictly to this three-warning rule isn’t necessary for any organisation who hasn’t written their own rule to do so.
The crucial thing to understand is that employment law is complex and varies depending on individual circumstances.
How many warnings is enough?
Warnings are often issued for an employee’s unsatisfactory performance (their capacity to do the role) or misconduct (such as not following instructions or engaging in inappropriate behaviour like bullying).
Because of this, the number of warnings required depends on the circumstances. For example, you can consider:
- Nature of the issue: if it’s reasonable to expect the employee to address their behaviour immediately (like deliberate misconduct), a single warning may suffice, vs. performance issues, an employee may need multiple opportunities to improve.
- Seriousness of the issue: Serious misconduct, like theft or assault, may justify dismissal without warning.
- Any prior warnings: A prior warning should only be taken into account if it was recent and if there is a connection between the issues (i.e. a pattern of behaviour).
- Commitment to improvement: An employee’s efforts and attitude towards rectifying the issues.
The number of warnings is dependent on the situation
The ingredients for a good warning
While the number of warnings might be an important consideration, employers should also ensure that warnings meet a few key requirements at a minimum:
- Outline the issue in clear and specific detail.
- Clearly specify consequences if the issue persists, including if it could lead to termination – merely saying “you need to improve” is insufficient.
- For performance issues: the steps required for improvement and the timeframe.
It's not the number of warnings but the content that matters
It's also different for small business
For small business employers under the Fair Work System, there is also the Small Business Fair Dismissal Code (effectively, a simple checklist). This Code provides protection against unfair dismissal claims – but generally only where an employer follows the Code.
Unlike for bigger businesses, this Code has much less stringent requirements to meet when dismissing an employee.
Find it here: Unfair dismissal – Fair Work Ombudsman
Beware, the written warning
Another myth that often ‘pops up’ is that warnings need to be in writing.
This is not technically true, however- it is strongly recommended to do so given it will help prove you were addressing the issues fairly and consistently.
While on this, please seek advice prior to mentioning ‘termination of employment’. While often needed, confirm that background steps have been taken (including ensuring the statement matches the issue).
Written warnings are easier to prove
Where to now?
As with many of the practical solutions we help clients put in place, the simplest action is to start small and follow up those verbal warning conversations in writing.
This is often as simple as an email (with it’s wonderful time stamps and proof of delivery).
And if it’s all still confusing?
Contact one of our team who will be happy to help you navigate these matters – simply click the link below and reach out to us now.
