An employee has been provided with counselling and two written warnings for poor performance/breaching organisation policies. We are about to give the employee a third warning. Are we able to terminate at this time or are we required to provide a further period of time (for example,1 month) to improve performance?
The Fair Work Act 2009 does not expressly require that an employee be given three warnings prior to dismissal; what would be considered reasonable disciplinary action (for example a level one warning, a level two warning or a summary dismissal) will depend on the nature and seriousness of the performance or conduct issues.
Therefore, businesses are able to formulate their own policies and procedures around performance and misconduct. Generally poor performance is managed differently to misconduct.
Where processes around managing performance or conduct become most relevant is after an employee is dismissed. A lack of procedural fairness in the lead up to the termination is a potential basis for an unfair dismissal claim. As such, it is important that an employer follows a fair process before dismissing an employee.
After each warning, best practice is to provide a warning letter outlining the infraction, the employee’s response, any prior warnings, and the consequences of any further breaches/failures. Such a letter should clearly state whether the warning is one that could lead to further warnings if there are further breaches/failures or whether this is a final warning that may lead to termination of employment.
If after being issued with a final warning the employee commits a further act of misconduct or the employee’s performance does not improve to an acceptable standard over a reasonable period of time, the dismissal of the employee may be warranted.
If an employee was to be given a warning and simultaneously be dismissed, the warning becomes meaningless and the fairness of the process leading to the termination may be questioned by the employee or challenged as part of an unfair dismissal claim.
Clinton is the Publications Manager at Ai Group. He is responsible for a number of key services including Annotated Modern Awards, Workplace Relations Handbooks and the management of Ai Group’s HR and Health & Safety Resource Centres. Clinton has a Masters in Employment Relations and previously held advisory roles with the Workplace Authority and Fair Work Ombudsman.
