Warnings: What are they? And can I be fired without one?

Co-Author: Kyna Gella

• What are warnings?
• How do I know I have been given a warning?
• Can I be fired without a warning?

What are warnings?

When an employee is dismissed for unsatisfactory performance, the question of whether they were given a warning is relevant in a case of unfair dismissal.  A warning is a form of disciplinary action which is important in ensuring an employee is given the opportunity to improve their performance. Before taking any disciplinary action, employers should look to whether they have:

• A valid reason;
• Followed a fair process; and
• Sought independent advice such as from a lawyer.

The Fair Work Commission (FWC) who deals with unfair dismissal claims, will often look to:

• The period of time between when an employee was warned about unsatisfactory performance to when they were dismissed; and
• How many warnings were issued.

This is to determine whether the dismissal was harsh, unjust or unreasonable as per s 387 of the Fair Work Act 2009 (Cth).

How do I know I have been given a warning?

A warning is often a written document which includes two important things:

1. Specific details of the employee’s performance and how it is of concern to the employer; and
2. A clear statement warning the employee that if the performance does not improve, their employment is at risk of termination.

However, a warning does not have to be in writing, it may be expressed verbally but should still identify the above. It is not sufficient for an employer to merely suggest or encourage the employee to improve.

Can I be fired without a warning?

There is no formal requirement that an employee must receive any warning before being dismissed for poor performance. However, the FWC has consistently supported unfair dismissal cases where it was found that not enough sufficient warning was given; where the warnings were inconsistent; and where the warnings were not genuine (i.e – a warning was given but the employer had already pre-determined an outcome to terminate the employee).

This was such in the case of Joshi v Panasonic Australia Pty Ltd [2010] in which a worker attended a meeting with the employer to discuss performance concerns. It was found that the employer had a pre-prepared script which pre-determined the outcome of the workers’ termination. This meant that while the proper procedures were followed to provide warnings, the worker had no say or opportunity to change the likelihood of the employer’s decision which defeats the purpose of a warning. It was therefore held that the termination was unfair and had no valid justification.

In other cases, a discussion may take place between an employee and a worker regarding their performance, this does not necessarily constitute a warning. In the case of Dean Sybecca Pty Ltd v Sleepy Lagoon Hotel [2010], a new manager raised with the worker, his expectations and goals of the business. This worker was later terminated. However, it was found that no indication was provided that his employment was in jeopardy if he failed to meet the expectations of new management. This meant that the worker could not formally improve his performance as he was not made aware. It was found that his termination was harsh, unjust or unreasonable.

I’ve been given a warning, what should I do next?

The first step is to stay calm. A warning does not mean that you will be fired. As discussed above, it is a form of communication between you and your employer to discuss whether you need to improve at work and if so, how you can achieve this.

Step two will be to keep a copy of the warning and arrange a meeting with your employer if they have not already. This meeting will be useful in discussing strategies moving forward, for example engaging in training for the areas of concern.

I have been unfairly dismissed at work, what do I do?

If you think you have been unfairly dismissed or you’d like to know more about unfair dismissals, this article will help you answer your questions.

Unfair Dismissal Claims For Employees

I Think I Have Been Unfairly Dismissed – Now What?

Coutts Lawyers & Conveyancers understand the stress involved in being unfairly dismissed from employment, or a dismissal involving a breach of general protections, and are happy to assist you with this process. Our team have experience in determining likelihood of success, considering employee eligibility across business structures, drafting applications, representing at conciliation, jurisdiction and arbitration conferences.

Contact Coutts today.

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.