Do I need to give an employee a written warning before terminating their employment?
Three strikes and you’re out? Not in the workplace it seems.
Although encouraged, employers do not need to issue a written warning before terminating their employee’s employment, let alone three.
Let me put this to you; would you give someone three warnings if it was found that they had stolen from you or put someone’s life in danger? I would hope not!
Sometimes this issue may not be as black and white as you think, so before you start exiting your employees, let’s take a moment to look at a few areas that may have an impact on the decision you may make.
What does your employment contract and/or policy/procedure say?
If the employee’s employment contract clearly details the procedures needed to be followed before you can terminate their employment, then you must follow these – no short cuts here I’m afraid!
Once more, if your procedures refer to the issuing of warnings as part of the disciplinary process, then again, you will need to follow them – I repeat, no short cuts here!
Both of the above scenarios will play a part in any unfair dismissal claim that may arise, so maybe it is time to have a look at your documents to see what they say.
Do I need procedures outlined in the employment contract or in a policy/procedure?
While it is not a legislative requirement to have these procedures detailed in an employment contract, the contract should reference that the employee is to follow your policies and procedures at all times.
Similarly, there is no legislative requirement to have a policy/procedure in place. However, having such a document will assist you in taking disciplinary action, including termination of employment. It will also provide staff with a clear outline as to how the disciplinary process will be undertaken.
Which is better – employment contract or policy/procedure?
Having detailed procedures outlined in the employment contract means that they are unable to be changed without the consent of the employee. You could get around this by providing a contract variation, however again, any changes to the employment arrangement requires agreement by both parties.
On the other hand, a policy/procedure may be changed without agreement by both parties. The catch – you need to consult with employees on the change. By consult, I mean give them the document, outline what is being changed and why, ask them for feedback, consider the feedback, and then make the decision on the changes based on the information received.
What do I need to give a warning for?
The most common need for a warning is when your employee is not performing their duties. If an employee is not up their performance standards, then you need to issue them with a warning so that they are given a chance to correct themselves. They may not realise they are not performing or may not realise the consequence of doing so.
A written warning allows the employee to become aware of the areas they need to improve on and a timeframe in which to make the changes. Both of these points reduce your chances of receiving an unfair dismissal claim.
On the other hand, if the employee engages in inappropriate behaviour in the workplace, like showing up under the influence of drugs or alcohol at work, inappropriate behaviour, regular lateness for work, theft, fraud, serious breach of WHS that puts another person’s life at risk, or refusing to carry out work duties (just to name a few), then you may issue a first and final written warning. This step gives your employee notice that this behaviour will not be tolerated in the workplace. This is where it is recommended that the ‘three strikes and you’re out’ rule would definitely not be applied.
What if I only give a verbal warning?
Verbal warnings still count as a warning. They are generally given as part of a ‘correction’ to change behaviour and/or performance. However, a written warning is better used as evidence should there be an unfair dismissal claim made against you. Having a written warning also ensures that the employee cannot disregard your requests or say, ‘you didn’t tell me’.
What if the behaviour is serious?
Where there is a serious incident that has put the business at risk (reputation and/or financial), and it has been thoroughly investigated and confirmed by yourself, then you may wish to terminate the employment.
This step is not to be used as a quick fix or spur of the moment decision making. I would strongly recommend that if you are planning to head down this path, that you ensure that you have all your ‘ducks lined up’ as you will need documented evidence to support your decision, including that the employee was aware of the consequences of their actions.
So, the rule of three? It's a myth. Though you are more than welcome to have a ‘three strike policy’ when it comes to warnings, it is not legally required before terminating an employee’s position.
For more information or for further assistance with disciplinary procedures, do not hesitate to contact us on 0447 245 691, email us at admin@epollardconsulting.com.au, or visit the Fair Work Ombudsman website.
Information provided in this article is general in nature. It does not constitute legal advice and should not be relied upon as such. Evelyn Pollard Consulting provides no warranty as to its accuracy, reliability, or completeness. Before taking any course of action as a result of reading this article you are advised to make your own inquiries and seek independent advice (including the appropriate legal advice) on whether the most suitable action for your circumstances.