Do I have to give a ‘Bad Apple’ 3 Warnings?
The old saying that that one bad apple can ruin the bunch is incredibly true. The effect of one disruptive person on an organisation can be immense if left untreated.
However, some businesses are reluctant to deal with performance issues, because they fear adverse consequences, including a costly unfair dismissal case.
Here we will outline a number of basic steps and key elements that should form part of a sound and fair process, based on Fair Work Act provisions.
Establish a valid reason
In all cases you must give your employee a valid reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
Explain the issue
Arrange a meeting and explain to your employee why their performance and/or conduct is unsatisfactory and that he or she risks being dismissed if there is no improvement.
It is very important that you provide your employee with an opportunity to respond to the warning and a chance to rectify the problem within a reasonable timeframe. Rectifying the problem may involve additional training, coaching, feedback and monitoring.
The often quoted ‘3 warnings before dismissal’ is not a legal requirement. The Fair Work Act does not set out any minimum amount of warnings that must be issued in order for a dismissal to be considered fair. Instead, the number of warnings given to an employee will depend on the facts and circumstances of each case. As a general rule, you should consider giving at least 2 warnings before dismissal. One exception to this rule is if the employee has committed gross or serious misconduct. In this case, you don’t need to give any warnings (or notice period)
Ensure that you document the process and provide your employee with a copy of the warning that states what is expected and the consequences if the employee does not improve. If the issue is not resolved following the first warning, you may issue the employee with a second and / or a final warning.
If there is no satisfactory improvement and if you can demonstrate that your employee was aware that their conduct or performance was unacceptable and have provided a reasonable opportunity to correct or improve, you may consider dismissing the employee without significant risk of adverse consequences
In discussions with an employee in circumstances where dismissal is possible, the employee can have a support person present at the meeting.
At this this stage it is also important that you genuinely consider your employee’s response. It is not recommended to arrive with a pre-prepared letter of termination to such meeting.
The above information is to be read as general guidance, not as a procedure. There are many more details to consider and you should always seek professional advice before you dismiss an employee.
If it’s been a while since you reviewed your policies and procedures around performance management and dismissal, or if you require information on this important area of management, please contact us. At Signature, your first consultation is always FREE
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