While it is best practice for an employer to provide an underperforming employee written warnings prior to terminating their employment, there is no legislative requirement for 3 warnings to be given.
However, as an employer, you do need to demonstrate that procedural fairness has been applied and that the employee has been given a chance to fix any performance issues.
Should a terminated employee make an unfair dismissal claim, the Fair Work Commission will take into consideration a number of factors when determining whether the dismissal was harsh, unjust or unreasonable. Such factors will include whether the employee:
· Was made aware of any underperformance or unsatisfactory behaviours
· Was given an opportunity to respond to the employer’s concerns
· Was provided with clarification regarding how their performance/behaviours is to be improved,
· Was reasonably aware that the failure to meet the required expectations may result in further disciplinary action which may include the termination of their employment.
· Was allowed to have a support person present at any performance or disciplinary meetings
While not legally required, the issuing of written warnings where an employee’s underperformance continues provides a useful record for employers to be able to demonstrate that due process has been followed and that the employee was aware that their employment was at risk of termination. The number of warnings that should be issued to an employee will depend on the nature and severity of the underperformance.
HR Advice Online can provide assistance and further information regarding the process that employers are required to follow when addressing underperformance with an employee, as well as provide templates for issuing formal written warnings. Please contact us on 1300 720 004 or via email at [email protected].
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.