The 3 warnings rule is a myth – that’s not the way Fair Work Australia would approach the question of unfair dismissal, a legal expert has warned.
Performance management is an unfavoured part of the HR professional’s task list and navigating the process can be fraught with risk.
According to one employment law expert, in any review by the workplace arbitrator, Fair Work would consider whether the expectations which the employee failed to meet were reasonable. They would also consider whether the employee understood their employment was in jeopardy by continued failure to meet expectations. “That’s what’s important, that an expectation was set and it would have been plain for the employee to see that their employment was in jeopardy. Then the next question is whether the expectation was fair – how bad was the conduct and how long were they given to remedy it?” Murray Procter from DLA Piper told HC.
The notion of ‘procedural fairness’ is a key element is proving a dismissal was legitimate, and may include such things as open and fair discussions, written warnings specifying problems with an employee’s performance, and the setting of reasonable time frames for review.
There is no easy formula for HR to calculate the seriousness of the behaviour against what time frame is reasonable for it to be rectified. Procter said it’s a matter of weighing up the seriousness of the behaviour against what expectations are reasonable for an employer to expect of somebody. Did the employee understand what those expectations were? Did they have that opportunity to improve? “And if you’ve done those things, then you’re in a much better position to be able to defend an unfair dismissal claim,” Procter said.
However, what is fair in any given scenario will vary depending upon the conduct, performance or capacity of the issue. In an article discussing the ‘3 warnings’ myth, employment lawyer Jill Tudberry gave the example of an employee using abusive language in the workplace. “[They] may only need one formal warning in respect of this behaviour, given that the behaviour can be rectified immediately. However, an employee who is not meeting a budget may need to be given several months as a reasonable period in which to rectify this type of performance issue,” Tudberry wrote.
The most important aspect in the counselling and termination process is to ensure that the employee has been afforded an opportunity to respond to the allegations and has been allowed a reasonable time to improve their performance, attitude or behaviour. In addition, the counselling and termination processes must be considered by a reasonable person to be fair in the circumstances, Tudberry said.
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