Three Warnings And You’re Out?

“But don’t I have to give him three warnings before I dismiss him?”

That was the question an employer asked me as they were pondering whether it was time to dismiss an unruly staff member.

It’s fair to say this client of mine is not alone. Many employers and employees think that a series of warnings must be in place before a staff member can be fired for misconduct.

In their minds, there is a cascading series of disciplinary steps that looks something like this:

  • Verbal warning (“A slap on the hand”)
  • First written warning (“Now we’re getting serious”)
  • Final warning (“We really mean it”)
  • Dismissal (“We warned you!”)

However, generally speaking, there is no law that demands at least several chances or warnings before you dismiss an employee. The only test you must meet is whether dismissal is fair.

So where do warnings come into it?

THE ONLY RELEVANT TEST

There is no enshrined law or court judgment that demands three warnings before dismissal.

The only relevant test is whether, by dismissing the employee, you have acted in a way that a fair and reasonable employer could, having regard to the circumstances.

That may or may not mean that you give warnings about the behaviour prior to dismissal.

Instead, the dismissal will be evaluated by the fairness of your reaction after taking certain things into account, like how bad the employee’s behaviour was.

THE MOST SERIOUS MISBEHAVIOUR

For example, if an employee badly misbehaves, then it is well established that you can dismiss them without any prior warnings.

How bad does the employee’s conduct need to be?

It needs to reach the level of what is known as serious misconduct.

Serious misconduct is where the essential trust and confidence between the parties to an employment relationship has been deeply impaired or destroyed.

Examples of serious misconduct demonstrate the employee is fundamentally untrustworthy and can include:

WHAT ABOUT LESS SERIOUS MISBEHAVIOUR?

Even if the employee has not done something that makes you feel like you can never trust them again, there may not need to be a cascade of warnings before you dismiss them.

Perhaps they have simply broken the Internet use policy, sworn at another staff member or a client, or conducted themselves badly at the staff Christmas party.

This is where warnings can be helpful.

A warning gives you the chance to voice your displeasure at the employee’s conduct and put them on notice that, if they repeat that behaviour, they may be likely to face the chop.

That puts you in good stead to meet the test of a fair and reasonable employer, because you are on better grounds to dismiss someone and treat them as untrustworthy when they have failed to heed warnings and obey your directions.

Nevertheless, that does not mean you need to follow a cascading approach of warnings, beginning with a verbal one and following through with two written warnings.

It may be that a single warning is sufficient before you dismiss. Again, the test is not whether you have given enough warnings, but whether you have acted as a fair and reasonable employer could in the circumstances.

EXCEPTION: WHEN THERE IS A POLICY

There is one exception to what I have been saying here that will mean that you do have to follow the cascading approach to giving warnings.

Many employers have disciplinary policies that enshrine the three-step cascading approach to disciplinary responses in the case of misbehaviour that does not reach the standard of serious misconduct.

If you have a policy like that, then you must follow it. The reason is that introducing a policy creates the expectation it will be followed, and that is likely to be regarded as what a fair employer would do.

You may want to think about whether it is a good idea to have a policy with a cascade of warnings you are bound by. Unless your policy is written in a way that is loose enough to allow you some wriggle room to deviate from it, from time to time as necessary, you may find that you are bound to act in ways that you wish you were not.

Not only must you follow it, but there is also the danger that, by simply following it, you may think you have acted entirely fairly and cannot be criticised. That may not be the case. Following a policy does not give you immunity against personal grievances. Again, the test is whether you have acted fairly in all the circumstances, which is a matter of judgment in every case.

Give careful thought then to whether it is a good idea to have such a policy. And if you do have one, give yourself the freedom in the wording of that policy to allow you to dismiss in the most serious cases.

CONCLUSION

Contrary to popular opinion, the cascading approach of warnings is simply not required in many cases.

This includes cases where employees have committed serious misconduct or have otherwise demonstrated that they are untrustworthy.

The key lesson here is to veer away from a mechanical approach to disciplinary action. It is not about whether you have followed the process per se, but whether the process you have followed is in fact fair in all the circumstances.