The Law & Written Warnings

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

Maybe you’re wondering:

- Does my boss need to give me three written warnings before I can be fired?

- Can I be dismissed after a verbal warning?

- What can I do if I believe my warning and dismissal was unfair?

Andrew Jewell, the principal lawyer with Jewell Hancock Employment Lawyers, talks us through written warnings, plus what’s legal and what’s not in this situation.

What is a written warning?

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

The idea behind a written warning is to let you know there are concerns, how you can address those concerns and what might happen if your conduct or performance doesn’t improve.

Are three written warnings always necessary?

Lots of people believe three written warnings are required by Australian law before an employer can dismiss or ‘fire’ an employee. This is not the case.

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

Workplace behaviours that warrant a written warning

Warnings tend to be given when employees are underperforming or when their performance is unsatisfactory.

If you’re given a written warning, it should give you a clear idea of where your performance hasn’t been good enough, and how you can improve.

Can I be dismissed without a warning?

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

Jewell says if the contract requires your employer to follow a dismissal process – which could include written warnings – then the employer has to follow it.

There’s no legal requirement to say that employees have to get a certain number of written warnings before being dismissed.

Can I claim unfair dismissal?

If you’ve been dismissed and you believe it was unfair, you can lodge an unfair dismissal application with the Fair Work Commission. It must be received by the Commission within 21 days of your dismissal taking effect.