Over the coming weeks, we are going to address some common myths and misconceptions we’ve noticed are prevalent across many workplaces, and give you the facts so you are more accurately informed around these aspects of employee management.

Myth #1 – Three Strikes and You’re Out

Many people have an understanding that there is a three strikes and you’re out rule – once an employee has received three written warnings, they can be lawfully dismissed. While there is a process that must be followed, there is no legislative requirement for three written warnings.

In fact, there are risks inherent in this practice that could have employers facing an unfair dismissal claim despite providing three warnings to the employee. In some instances, the three strikes approach could expose the business to greater risk.

Why the three strikes and you’re out rule is risky for businesses

Even if following the process of three written warnings prior to a termination, this may still be considered an unfair dismissal;

  • If the written warnings are inconsistent with precedents set with other employees in the same workplace,
  • If the written warnings are considered unreasonable or not warranting a warning
  • If the timing between the warnings is significant enough, or
  • The warnings are unrelated or not related to the dismissal.

Further, the employer may decide not to dismiss an employee where there has been a case of serious misconduct if they believe they are required to give three warnings. We’ve seen instances where an employee is continuing dangerous or highly inappropriate behaviours as employers felt limited in their options beyond providing a written warning, due to this common misbelief. Where the safety of other employees, or the reputation of the business is at serious risk, there are other options available to employers.

How many written warnings are needed?

In the case of serious misconduct, an employee may be dismissed without notice, however there is still a process to follow. That may include standing down the employee while conducting an investigation, and ensuring the employee has the opportunity to explain their actions.

If an employer is dealing with performance related matters, the employee must be advised of their inadequate performance, provided with clarity around expectations, and given an opportunity to improve with appropriate support and regular feedback.

There is no magic number of warnings that will protect an employer from an unfair dismissal claim. The Fair Work Commission will assess the reasonableness of the process that is followed leading up to the termination, based on the specifics of the case. This is why it is important to keep a record of conversations and documenting meetings with the employee is critical.

Following the correct process to meet legal obligations

To assist businesses in carrying out a fair process consistently across their workforce we recommend having policies and procedures in place for managers and employees to clearly understand the process that will be followed in the event of poor performance or misconduct.

Cornerstone can assist employers in developing processes that meet legal requirements and take into account the practicalities of carrying out these processes correctly within each unique business. If you require assistance managing employee performance issues or misconduct, don’t hesitate to get in touch with our team, via the chat box here or calling us on 08 6150 0043.

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