I have received a first and final warning, aren’t I meant to get three warnings before my employer can dismiss me?

What is the purpose of a warning?

The purpose of a warning is to inform an employee that his or her work performance or conduct is unsatisfactory and the performance or conduct in issue needs to improve.

However, there is no requirement for an employer to provide an employee with three warnings, or even one warning before terminating their employment.

What is the relevance of a warning?

Warnings (or lack of them) may nevertheless be relevant in an unfair dismissal claim, where the Fair Work Commission must determine whether a termination of employment was harsh, unjust or unreasonable. In assessing a claim, the Fair Work Commission will consider, among other things:

• whether there was a valid reason for the dismissal;
• whether you were notified of that reason;
• whether you were given an opportunity to respond to any reason related to your capacity or conduct; and
• if the dismissal is related to unsatisfactory performance, whether you were given any warnings about that unsatisfactory performance before the dismissal.

Therefore, the issue of warnings may be relevant in assessing whether your employer followed a fair process in effecting your dismissal.

For example, in John Ingham v Metro Quarry Group Pty Ltd [2015] FWC 6472, an employer relied upon a previous ‘final’ warning to dismiss an employee who breached the employer’s zero alcohol policy.  Commissioner Bissett of the Fair Work Commission found that the employer’s reliance on the ‘final’ warning was not valid as the prior misconduct only warranted a warning. Thus, the dismissal was found to be unfair.

Notably, the Commissioner observed that ‘a “first and final warning” appears to have become the disciplinary tool of choice in many workplaces, regardless of the severity of the transgression of the employee.’ Commissioner Bissett highlighted the need for employers to consider whether ‘the punishment fits the crime’, noting, ‘a first and final warning is a harsh penalty to impose on an employee, particularly where…it is a first incident of misconduct. Having given such a harsh sanction, I do not consider that it can be relied on to terminate employment for a second incident of misconduct in circumstances where it was not warranted in the first place.’

Furthermore, irrespective of whether you have been dismissed, if you have been issued with a warning and it can be shown that the warning was issued because you have exercised a workplace right (e.g. made a complaint or inquiry relating to your employment, taken leave entitlements) or because of a particular characteristic (e.g. age, sex, disability, race, pregnancy, family responsibilities etc) it may be relevant to a general protections claim.

If you feel that any of the above circumstances apply, you may have grounds to file a claim with the Fair Work Commission. Please contact our lawyers at McDonald Murholme for further information.