Written Warnings – Busting the Myth of 3 Strikes and You’re Out
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A written warning is an important workplace tool to ensure that an employee understands the employer expectations. Warnings communicate an identified area of where an employee needs to improve, or where their current conduct does not meet the required or expected standard of the business. The aim of a warning is to improve the employee’s performance.
There is no legislative requirement for an employer to provide an employee with any set number of warnings prior to terminating their employment. One verbal or written warning is, however, required to be given by those who operate a small business (less than 15 employees) as per the Small Business Fair Dismissal Code. However, before you cut to the chase, it would be suggested to double check any obligations that may exist within your performance management policies, employment contracts and or enterprise agreement to ensure that you are not at risk of leaving yourself open to breaching your own polices or employer obligations. Of course, for matters pertaining to serious misconduct, as defined by the Fair Work Act 2009 (Cth), there may be no requirement for a warning where a summary dismissal is justified.
In general, the onus is, however, on the employer to demonstrate that procedural fairness has been applied and that the employee has been afforded time to fix any performance issues. The issuing of an adequate written warning may assist the employer in demonstrating that due process was followed, and that the employee was aware that their employment was at risk of termination. Process becomes important especially if you are required to defend an unfair dismissal claim. Written warnings can provide evidence that a fair performance management process was followed, supporting decisions to terminate employment. Failure to implement a fair and reasonable process can come at a high price.
Should you require further assistance or what would like more information on performance management or termination procedures, the Master Builders Workplace Relations and Legal team can help. Reach out on (02) 6175 5900
