Myth Buster Series - 3 Strikes and you're out?

Posted by Luke Mitchell on 11 November 2014

A common misconception that we hear is that – aside from instances of serious misconduct – an employee cannot be dismissed unless they been given 3 written warnings.

This “3 warnings requirement” is a myth. There is no piece of law that creates such an obligation. Rather, the notion appears to have developed as matter of good practice in ensuring that an employee has been, or perhaps at least appears to have been, afforded procedural fairness prior to the employer deciding to terminate their employment.

The manner in which the employer handles the termination process is almost as important as the reason(s) for the termination. While there are no hard and fast rules around what amounts to procedural fairness, where an employer is managing performance and/or disciplinary issues it is essential that procedural fairness is considered at the start of the process, not just at the end. Some things to consider:

• ensuring that the employee is notified, in writing, as to the employer’s concerns. If this step is done properly, then it may be that only 1 “warning” is required;
• allowing the employee a reasonable period to improve performance and/or discipline;
• implementing a plan, including making resources available, to assist the employee to improve;
• clearly stating the possible consequences should there be no improvement.

The Small Business Dismissal Code Checklist, published by Fair Work Australia, provides all employers with a useful guide as to the types of steps that should be taken prior to the termination of an employee. Not surprisingly, there is nothing in the Code about providing 3 written warnings!