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‘Three warnings’ myth exposed

Many employers and employees are still working under the misapprehension that WA legislation requires three warnings to be given before an employee’s services can be terminated.

There is actually no such rule in Western Australian law. The ‘three strikes’ rule developed as a matter of human relations policy under the Keating government’s federal legislation before the introduction of the 1996 Workplace Relations Act.

Under the 1996 Workplace Relations Act, there is no specific statutory requirement to give any employee three warnings before dismissal.

Although the ‘three warnings’ requirement may be found in the human resource policies of some large corporations and, possibly, in some federal awards, as a general principle no such requirement exists under the WA Industrial Relations Act or, indeed, the Federal Workplace Relations Act.

In order to determine the procedure to be adopted when terminating the services of any employee, the provisions of the applicable award or the state or federal legislation must be considered.

In general terms, commissioners and magistrates will look at the overall ‘fairness’ of the procedures leading up to and including the dismissal.

This will include the reasons for dismissal, the employee’s response to prior warnings, the fairness and method of any warnings and whether they were deserved or contrived.

In looking at the overall ‘fairness’ of any warning, a judgement will be made on whether the reason did indeed justify the dismissal.

For example, if an employee is asked to perform duties which are quite obviously outside their skill levels or their job description, then it would be deemed ‘unfair’ for an employer to dismiss that employee if those duties were not performed properly.

On the other hand, where an employee continually fails to perform his or her fairly assigned duties and cannot or will not make an attempt to improve performance after ‘fair’ warning to do so, then dismissal becomes an option for the employer irrespective of the actual number of warnings.

An instant dismissal is still available for extreme circumstances such as proven theft or fraud or where industrial or intellectual sabotage can be proven to have occurred.

The dismissal procedure requires extreme care and in all cases employees and employers are advised to seek specialist professional advice before terminating any employees.

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