Do they have to warn me three times first?
18 quoted answers, each with its source
The short answer
There is no legislative rule requiring a set number of written warnings before dismissal for poor performance, and the Fair Work Commission benchbook states there is no rule that an employee must receive three written warnings. But when a dismissal is due to underperformance, the Commission considers whether the employee was warned about their performance before the dismissal, and the warning must identify the relevant performance concern and make clear that poor performance may result in termination; a mere exhortation to improve is not enough. Serious misconduct may result in immediate termination, and a small business employer's dismissal is consistent with the Small Business Fair Dismissal Code if the employer complied with that Code. One employer guide describes two verbal warnings and a written warning before ending employment, but that sequence is not a legislative requirement.
Every part of this comes from the quotes below. How we write these.
What the rules actually say6
Quoted straight from the Fair Work Ombudsman, the Fair Work Act 2009 or the applicable modern award.
The Fair Work Ombudsman states that when deciding if a dismissal was harsh, unjust or unreasonable the Fair Work Commission considers, where the dismissal was due to underperformance, whether the employee had been warned about their performance before the dismissal.
1 quote from 1 source
if the dismissal was due to underperformance, whether the employee had been warned about their performance before the dismissal
- Unfair dismissal - Fair Work Ombudsman fairwork.gov.au
The Fair Work Commission states that dismissal means the employer telling the employee they no longer have a job.
2 quotes from 1 source
‘Dismissal’ means the employer telling the employee they no longer have a job.
fire an employee with or without warning for their behaviour
Fair Work Act 2009 section 388(1) provides that the Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
3 quotes from 1 source
The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
388 The Small Business Fair Dismissal Code (1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
- Fair Work Act 2009 legislation.gov.au
Fair Work Act 2009 section 388(2) makes a small business employer's dismissal consistent with the Small Business Fair Dismissal Code where the employer complied with that Code.
4 quotes from 1 source
The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
388 The Small Business Fair Dismissal Code (1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code. (2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if: (a) immediately before the time of the dismissal or at the time the
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if: (a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and (
- Fair Work Act 2009 legislation.gov.au
The Fair Work Commission's Unfair dismissals benchbook states that there is no legislative requirement specifying that an employee must be given a certain number of written warnings before being dismissed for poor performance.
1 quote from 1 source
There is no legislative requirement specifying that an employee must be given a certain number of written warnings before being dismissed for poor performance. For example, there is no rule that an employee must receive three written warnings.
The Fair Work Commission's Unfair dismissals benchbook states that a mere exhortation to improve is not sufficient.
1 quote from 1 source
Warnings must identify the relevant aspect of the employee's performance which is of concern to the employer.
Measured finding1
Something someone actually measured, with the method attached.
In Joshi v Panasonic Australia Pty Ltd [2010] FWA 2946, it was concluded that the meetings were a 'mechanical process' that did not genuinely afford the employee an opportunity to respond.
3 quotes from 1 source
Joshi v Panasonic Australia Pty Ltd [2010] FWA 2946 (Cambridge C, 15 April 2010)
It was found that the employer had pre-prepared a script regarding the warnings to be given before disciplinary meetings took place.
It was concluded that the meetings were simply a 'mechanical process' that did not genuinely afford the employee an opportunity to respond to the warnings or affect the outcome of the meeting.
Practical effect7
What is observed to happen in practice, as distinct from what is documented.
In Martin v Donut King Chirnside Park T/A Hersing Pty Ltd [2012] FWA 2905…
- warnings before dismissal require that an employee be warned that her poor performance may result in termination.
- the employee was not given a warning before dismissal that her poor performance may result in termination.
- the termination in the matter of warnings before dismissal was found to be harsh, unjust and unreasonable.
2 quotes from 1 source
Martin v Donut King Chirnside Park T/A Hersing Pty Ltd [2012] FWA 2905 (Smith DP, 19 April 2012)
It was found that an employee must be warned that her poor performance may result in termination. Such a warning was not given in this case. The termination was found to be harsh, unjust and unreasonable.
In Dean v Sybecca Pty Ltd t/as Sleepy Lagoon Hotel [2010] FWA 8462, it was held that the…
- employer was a small business and did not have human resources expertise.
- employer was required to openly communicate with the employee about their concerns and to provide an opportunity for improvement.
- termination was harsh, unjust or unreasonable.
2 quotes from 1 source
Dean v Sybecca Pty Ltd t/as Sleepy Lagoon Hotel [2010] FWA 8462 (Richards SDP, 4 November 2010)
It was held that, although the employer was a small business and did not have human resources expertise, the employer was required to openly communicate with the employee about their concerns and to provide an opportunity for improvement. It was held that the termination was harsh, unjust or unreasonable.
In Joshi v Panasonic Australia Pty Ltd [2010] FWA 2946, it was found that the employer had pre-prepared a script regarding the warnings to be given before disciplinary meetings took place.
3 quotes from 1 source
Joshi v Panasonic Australia Pty Ltd [2010] FWA 2946 (Cambridge C, 15 April 2010)
It was found that the employer had pre-prepared a script regarding the warnings to be given before disciplinary meetings took place.
It was concluded that the meetings were simply a 'mechanical process' that did not genuinely afford the employee an opportunity to respond to the warnings or affect the outcome of the meeting.
Disputed between sources1
Sources that do not agree, presented without picking a winner.
Employsure's wrongful termination guide describes a sequence of two verbal warnings and a written warning before an employer can justly end employment.
2 quotes from 2 sources
There is no legislative requirement specifying that an employee must be given a certain number of written warnings before being dismissed for poor performance. For example, there is no rule that an employee must receive three written warnings.
These might include giving the employee two verbal warnings and a written warning before being able to justly end their employment.
- fwc.gov.au
- Wrongful Termination | Employsure | Employer Guide employsure.com.au
Often said, but we could not find it in the rules3
Lots of people say this. We went looking for an official source that backs it up and could not find one, so treat it as something people repeat rather than something settled.
Regarding warnings before dismissal, Employsure's insubordination guide states that…
- discipline for insubordination could take the form of a written warning, verbal warning or a formal warning.
- in the case of serious misconduct the discipline might result in immediate termination.
1 quote from 1 source
This could take the form of a written warning, verbal warning or a formal warning. In the case of serious misconduct, the discipline might be more severe and could result in immediate termination.
- Insubordination guide employsure.com.au
Employsure's insubordination guide states that insubordinate employees placed onto a performance management plan who fail to improve can be terminated for repeated misconduct.
1 quote from 1 source
Insubordinate employees who are placed onto a performance management plan but fail to improve can also be terminated for repeated misconduct
- Insubordination guide employsure.com.au