Can you fire someone without a written warning?

As an employer, you may occasionally need to take disciplinary action with your staff. This can be challenging, so it's crucial to understand your rights and responsibilities regarding warnings and disciplinary measures.

We consulted Andrew Jewell, principal lawyer at Jewell Hancock Employment Lawyers, to clarify the legalities of issuing warnings and whether the "three written warnings" rule is a myth.

Do I need to give three written warnings before dismissal?

Contrary to popular belief, Australian law does not require three written warnings before dismissing an employee. Jewell explains, "The 'three warnings rule' is a common misconception in employment law – it simply does not exist. Some organisations use this approach to mitigate risks in unfair dismissal claims, but multiple warnings are not legally required."

Legal requirements for warnings and terminations

Warnings are only necessary in performance-based dismissals during unfair dismissal proceedings. Jewell states, "If an employee is dismissed for poor performance without prior warning, the dismissal is likely to be deemed unfair."

When to issue a written warning

Warnings are typically issued for underperformance or unsatisfactory performance, which relates to an employee's ability to do the job rather than their conduct. Jewell advises that a warning should clearly outline the performance issues, required improvements, timeframe for improvement, and consequences of failing to improve.

Employers can also issue warnings for misconduct that doesn't warrant immediate dismissal but is serious enough to address. The Fair Work Commission defines serious misconduct as actions that pose a serious risk to health and safety, the business's reputation or profits, or behavior inconsistent with continued employment, such as theft, fraud, assault, or being intoxicated at work.

Can I dismiss my employee without a warning?

Jewell notes, "The starting point in assessing whether you can dismiss an employee is the employment contract. If the contract requires a dismissal process, including warnings, it must be followed. However, most contracts only specify the notice period required for termination."

There is no legal requirement for a specific number of written warnings before dismissal. However, unfair dismissal claims are often upheld if an employee wasn't given a chance to respond to performance concerns or improve over a reasonable period.

What if an employee claims unfair dismissal?

Employees dismissed for performance or conduct reasons must have completed six months of service (or 12 months for small businesses with fewer than 15 employees) and earn below the high-income threshold (or be covered by a modern award or enterprise agreement).

Jewell explains that warnings are relevant only in performance dismissals and are not a strict requirement. "There is no need for multiple warnings, and no distinction between written or verbal warnings, although written warnings are stronger from an evidentiary perspective."

While not legally required, giving employees at least one written warning before dismissal is advisable to allow them to address performance or conduct issues.

For more information or support in managing disciplinary processes, consult your HR representative, contact the Fair Work Ombudsman, or seek advice from an employment lawyer.

Note: This information is general and does not constitute legal advice. Our Company provides no warranty as to its accuracy, reliability, or completeness. Seek independent advice before taking any action based on this article.