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Three Warnings – Do They Count??

Posted May 23, 2016

HABA receives a significant number of questions about performance management processes, where the salon owner or manager has had numerous verbal conversations with the employee and the employee continues with the same conduct or performance.

The three-warnings rule holds that if the employer is able to show that they gave an employee three warnings (preferably in writing) in relation to his or her performance prior to termination then the employee cannot claim unfair dismissal. In reality there is no guarantee that everything will be all right or, indeed, that the employee won’t decide to contest the dismissal. Also many salon owners do not know that a redundancy can lead to a claim for unfair dismissal.

The fact that three warnings were given is one of a number of factors that the Fair Work Commission (FWC) can take into account in determining whether an employee has been unfairly dismissed.

The Federal legislation applying to claims for unfair dismissal stipulates that FWC can take the following matters into account when deciding whether an employee has been unfairly dismissed whether:

  1. There was a valid reason for the termination;
  2. The employee was notified of the reason;
  3. The employee was given any opportunity to respond to any reason;
  4. If there was unsatisfactory performance, the employee was notified of this;
  5. The degree to which the size of the employer’s undertaking would be likely to impact on the procedure for implementing a termination;
  6. The degree to which lack of human resource management would be likely to impact on the procedures followed; and
  7. Other matters as FWC considers relevant – a catch-all phrase allowing the consideration of other matters.

Three warnings and evidence of poor performance without making it clear to an employee that their job is on the line and without an opportunity to reply and/or improve won’t get an employer over the line.

But, even in the case of misconduct, FWC may still decide that the termination was unfair after it has taken all the circumstances of the case into account.

For further clarification call HABA today on 02 9221 9911


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