Do you know how many warnings to give an employee before you dismiss them for underperformance or misconduct?
A mistake that employers sometimes make is to create unnecessary disciplinary restrictions in their workplace policies. The '3 warnings before dismissal’ is somewhat of a myth. Some employers mistakenly include this process in workplace policies as well-intentioned guidance for their managers to follow.
In reality, however, such a restriction would leave a manager without the necessary discretion to take dismissal action when faced with serious misbehaviour, if the requisite amount of prior warnings had not been issued.
Written warnings should include the following elements:
- Identify the type of conduct or underperformance which is the subject of complaint;
- Identify a timeframe for improvement in cases of poor performance;
- Identify the likely consequence of a failure to remedy the underperformance or misconduct.
The Fair Work Act does not set out any minimum amount of warnings that must be issued in order for a dismissal to be considered fair. The number of warnings given to an employee (if there is more than one) will depend on the nature of the conduct or under-performance.
In considering unfair dismissal applications, Fair Work Australia is required to take into account whether a dismissed employee had been warned about the unsatisfactory performance/conduct before the dismissal. How many warnings are appropriate before an employer may dismiss a misbehaving or underperforming employee, will depend on the facts and circumstances of each case.
However if your company has a stated procedure of '3 warnings' the tribunals will take a dim view of your company if you fail to follow your own procedure. Where an employee’s dismissal is found to be unfair, an order for reinstatement of the employee or the payment of monetary compensation could follow.
If it's been a while since you updated your policy on Disciplinary Procedure please speak to us. Clients of Your HRdocs can access an updated policy.