Issuing Final Written Warnings can prove to be problematic
It is not uncommon for employers to respond to employee misconduct or significant misbehaviour by wanting to issue a `first and final warning’ (FFW). However, for several reasons, we would recommend caution for employers wanting to go down this route.
As the term `first’ suggests, the employee in such situations most likely has had an unblemished or minor disciplinary history up to that point. Although there is no legal compunction in Australia to follow `three strikes/three written warnings’ prior to termination, it is consistent with the legislative principle of a `Fair go all-around’ which suggests an escalation in employer responses to unacceptable behaviour or conduct over time.
Fundamentally, an FFW should only be considered in situations where the employee has engaged in misconduct of such magnitude that the employer is potentially considering the possibility of termination (in effect, a summary dismissal). In colloquial needs, you need to be certain that “the punishment fits the crime”. It could be reasonably argued that such a penalty ignores other typical mitigating factors including the employee’s disciplinary record as well as their length of service (with penalties usually reducing in severity due to either factor or a combination of both).
As with all written warnings, the employer must base their ultimate decision on sound investigation methodology and ensure that both the allegations and determinations address specific issues with stringent details provided.
If an employer has decided to issue an FFW to an employee, are there any obvious pitfalls moving forward? One concern is to what extent could it influence your thinking if faced with further unacceptable behaviour by the same employee. At the very least, you must ensure that the FFW doesn’t introduce bias or lead to presumptions about the employee’s guilt in respect of subsequent allegations.
As well, although uncommon, the FWC has overturned dismissals in situations where they have determined that an earlier FFW issued to an employee was disproportionate to the offence committed. With the effluxion of time, an employer should also give less weight to a previous FFW when considering a potential termination as a result of further misdemeanours.
For queries about Written Warning, investigations or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to firstname.lastname@example.org.
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.