Can I be fired without 3 written warnings?

When it comes to the law on written warnings, it’s normal to have questions.

Maybe you are wondering:

  1. Does my boss need to give me three written warnings before I can be fired?
  2. Can I be fired after a verbal warning?
  3. What can I do if I think my warning and termination were unfair?

We asked Andrew Jewell, the lead attorney at Jewell Hancock Employment Lawyers, to talk to us about written warnings, as well as what is legal and what is not in this situation.

What is a written warning?

A written warning is a document an employer gives an employee to formally indicate a concern about his or her conduct or performance in the workplace.

The idea behind a written warning is to let you know that there are concerns, how you can address those concerns, and what might happen if your behavior or performance does not improve.

Are three written warnings always necessary?

Many people believe that Australian law requires three written warnings before an employer can fire or “fire” an employee. This is not the case.

“The ‘three strikes rule’ is one of the most common misconceptions in employment law. It just doesn’t exist,” says Jewell.

Jewell says the reason some organizations use the three written warnings approach is to avoid risk in wrongful termination claims, but notes that even wrongful termination matters don’t require multiple warnings.

The only time warnings are required

The only time reprimands are required is in performance-based dismissals in unfair dismissal proceedings. “If you are fired for poor performance and you never received a warning that you were underperforming, then your firing is likely to be viewed as unfair,” says Jewell.

Behaviors in the workplace that warrant a written warning

Warnings tend to be given when employees perform poorly or when their performance is unsatisfactory.

If you receive a written warning, it must give you a clear idea of ​​where your performance has not been good enough and how you can improve. “The warning should clearly describe how you’re underperforming, what you need to do to reach an acceptable level of performance, the time frame for improvement, and the consequence of not improving,” says Jewell.

Your employer can also issue warnings for misconduct that does not warrant termination but is serious enough to stop you and can be used to warrant termination if your behavior or misconduct continues.

According to Fair Work Australia, serious misconduct is when an employee causes a serious risk to the health and safety of another person or to the company’s reputation or profits, or knowingly behaves in a way that is inconsistent with the continuation of your employment.

Examples of serious misconduct include:

  • theft
  • fraud
  • assault
  • Refusal to perform work tasks.
  • being drunk at work

Can I be fired without a warning?

To answer this, it’s best to first look at your employment contract to see what it says about termination.

Jewell says that if the contract requires her employer to follow a termination process, which could include written warnings, then the employer must follow it. But he says employment contracts rarely implement these measures, and more often only state the amount of notice required if your employment is terminated.

There is no legal requirement that employees must receive a certain number of written warnings before being fired. But it is worth noting that wrongful termination lawsuits have regularly been upheld by the courts in which an employee was not given the opportunity to respond to performance concerns or improve their performance within a reasonable period of time.

Can I claim an unfair dismissal?

If you have been fired and believe it was unfair, you can file an application for wrongful termination with the Fair Work Commission. He must be received by the Commission within 21 days of the effective date of the dismissal of him.

You can check if you are eligible to apply for unfair dismissal by answering the unfair dismissal eligibility questionnaire.

If you have received a warning that you believe is unfair and your employment is terminated, you may have grounds to file a wrongful termination claim. If you need more information or support, talk to your company’s human resources department if there is one, contact your union, contact Fair Work Australia or contact a labor lawyer for advice and support.

The information provided in this article is general only and does not constitute legal advice and should not be relied upon as such. SEEK makes no warranties as to its accuracy, reliability, or completeness. Before taking any course of action in connection with this article, you should make your own inquiries and seek independent advice (including appropriate legal advice) as to whether it is suitable for your circumstances.

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