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Is It Really ‘Three Strikes And You're Out’?

Published November 11, 2015 (last updated on July 1, 2024) | Adam Wyatt - Content Writer


Many employers would have heard the complaint “But you have not given me three warnings” from angry employees in disciplinary meetings, but does the strike system actually hold any legal weight?

According to Bryony Binns from Baker and McKenzie, many employers believe that in order to terminate an employee, they must first give them three warnings. However, whilst it is correct employers need to follow a correct process, there is no legislative requirement or statement, suggesting this is required.

In some instances, three warnings may be considered best practice although this number may not be applicable to every situation. Whether or not the number of warnings given prior to termination is fair, it should entirely depend on the termination circumstances. For example, the termination for inappropriate conduct and the termination for poor performance would follow slightly different processes.

In regard to performance related termination, the Fair Work Commission (FWC) states the employer must have put the employee on notice of their poor performance. The employee must have been given reasonable opportunity to improve, as well as appropriate support, feedback and the chance to succeed.

On the other hand, the circumstances of employee misconduct can be so bad it warrants instant dismissal. Even in these situations however, the employer must put the employee on notice of their alleged misconduct and provide the employee with the opportunity to respond before taking steps to terminate their employment.

Employers must always allow their employees the opportunity to explain their actions. In every unfair dismissal case, the FWC looks at whether the employee was given the chance to respond to the allegations.

The three-strike rule is faulty as it has the opportunity to lure employers into a false sense of security over the fairness of the termination. However, three warnings may correlate to different types of misconduct over a lengthy period.

Peninsula can advise employers on the correct policies and procedures for terminating employees. If you have any questions relating to employee misconduct, do not hesitate to contact us today on 1300 651 415.

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