Managing performance and conduct issues is part and parcel of leading a team. You want to support your people to succeed, but sometimes behaviour or performance doesn’t improve despite coaching and clear expectations.
That’s when a common question pops up: how many warnings before dismissal in Australia? And just as importantly, what does a fair and lawful process look like so you reduce the risk of claims and protect your business?
In this guide, we’ll walk through what counts as a warning, why there’s no set “three strikes” rule, how to run a procedurally fair process, and where the rules differ for probation and small businesses. We’ll also flag the key legal risks and the documents every employer should have in place.
What Is a Workplace Warning?
A workplace warning is a formal step to make an employee aware that their conduct or performance isn’t meeting expectations, what needs to change, and the consequences if it doesn’t.
Warnings generally fall into two buckets:
- Verbal warning – a documented conversation about the issue and the expected improvement.
- Written warning – a letter that sets out concerns, standards required, timeframes, and potential outcomes if the problem continues (up to and including dismissal).
Both verbal and written warnings are part of a fair disciplinary process. They give the employee a genuine chance to improve and create a clear record of what happened, when and why - which is essential if your decision is ever reviewed.
How Many Warnings Before Dismissal in Australia?
There’s no fixed number of warnings required under Australian law. Neither the Fair Work Act nor the Fair Work Commission mandates “three strikes” or any specific sequence.
What matters is that dismissal is fair and reasonable in the circumstances. In practice, that means you consider the nature of the issue, the employee’s history, the clarity of your expectations, and whether you gave a real opportunity to respond and improve.
What Will the Fair Work Commission Look At?
If a dismissal is challenged, the Commission looks at overall procedural and substantive fairness (for example, the criteria in section 387 of the Fair Work Act). Factors include:
- Whether the employee knew the required standards and the concerns being raised.
- Whether they had a reasonable opportunity to respond and to improve.
- Whether your process was consistent with any Award, enterprise agreement, policy or contract.
- Whether the dismissal was proportionate to the issue.
One well-documented written warning can be sufficient in some cases. In others, more steps will be reasonable. It depends on the conduct, the role, the risks involved, and the support provided.
For underperformance or lower-level misconduct, many employers use a staged approach: informal feedback or a verbal warning, followed by a written warning if issues persist, and further action if there’s no improvement. For serious misconduct (for example, theft, fraud, violence, or serious WHS breaches), summary dismissal may be justified following a fair investigation.
It’s helpful to understand how those fairness factors work in practice by reviewing section 387 of the Fair Work Act.
Do Verbal Warnings Count?
Yes. A verbal warning is a legitimate step - especially for first-time or lower-level issues - provided you keep a record of the conversation, what improvement you set out, and the next steps if the issue continues.
Verbal warnings alone will rarely support dismissal unless you’ve then moved to written steps when problems persisted.
How Long Do Warnings Last?
There’s no prescribed “expiry date” for warnings in Australia. Common practice is to specify a period (often 6–12 months) in the written warning. Whether a past warning remains relevant will depend on your policy, the nature of the issue, the time elapsed, and whether similar issues recur.
A best practice written warning should state how long it remains on file and what happens if similar issues arise within that period.
What Process Should You Follow Before Dismissal?
Procedural fairness (natural justice) is critical. While the exact steps vary by case, a fair process usually includes:
- Identify and document the issue – specify dates, examples and the standard not met (e.g. a policy, position description or KPI).
- Invite the employee to a meeting – outline the concerns in advance, allow a support person if requested, and give reasonable time to prepare. A show cause letter is often used for this step.
- Seek and consider the response – genuinely consider explanations, medical or personal factors, training needs, or workload issues.
- Set clear expectations and support – confirm what improvement is required, the timeframe, and the assistance you will provide (training, coaching, closer supervision).
- Warn about consequences – state that continued issues may lead to further disciplinary action up to and including dismissal.
- Follow through – monitor, meet again, and only escalate if improvement isn’t achieved within a reasonable period.
Where allegations are serious, consider suspending the employee on pay while you investigate. That step, handled carefully, can be appropriate to maintain safety and integrity of the process; see our guidance on suspending an employee pending investigation.
If dismissal becomes necessary, provide the decision and reasons in writing and address final entitlements, any payment in lieu of notice if applicable, and return of company property.
Many employers choose to build this into a structured performance management process to ensure each step is consistent and well-documented.
Probation, Minimum Employment Periods And Small Business Rules
“Probation” and unfair dismissal eligibility often get confused. They are related but not the same.
Minimum Employment Periods
To qualify for most unfair dismissal claims, an employee must meet the minimum employment period:
- 6 months for employers with 15 or more employees; or
- 12 months for small business employers (fewer than 15 employees).
Many businesses set a probation period that aligns with the relevant minimum period, but “probation” itself is not a legal shield. You should still act fairly and document your process during probation. For practical guidance specific to probation outcomes, see terminating employment during probation.
Small Business Fair Dismissal Code
If you have fewer than 15 employees, the Small Business Fair Dismissal Code may apply. If you follow the Code, a dismissal will be deemed fair for unfair dismissal purposes. The Code still requires genuine reasons and a fair process (and for summary dismissal, reasonable grounds to believe serious misconduct occurred), so keep solid records and use written steps wherever possible.
General Protections Apply From Day One
Even where an employee hasn’t reached the minimum employment period for unfair dismissal, general protections (adverse action) laws still apply. You must not take action because a person exercised a workplace right, made a complaint, took protected leave, or due to protected attributes (such as race, sex, age, disability, pregnancy, or union membership). This is one reason a consistent, evidence-based process is so important.
Legal Risks And Essential Documents For Employers
When warnings or dismissals go wrong, the biggest risks are unfair dismissal and adverse action claims. You also need to ensure compliance with any Award or enterprise agreement, your Employment Contract, and your internal policies.
Key Legal Risks
- Unfair dismissal – if the dismissal is harsh, unjust or unreasonable having regard to factors like those in section 387.
- General protections (adverse action) – unlawful to dismiss or disadvantage an employee because of a workplace right, complaint, industrial activity, or protected attribute.
- Award/agreement breaches – failing to follow consultation or disciplinary clauses can create additional exposure.
- Poor documentation – without records of warnings, meetings and support provided, it’s harder to defend your decision.
Documents That Help You Get This Right
- Employment Contract: sets role expectations, notice, and key obligations, reducing ambiguity from day one. You can use a tailored Employment Contract for each role type.
- Workplace Policies or Staff Handbook: clarifies standards (conduct, performance, bullying and harassment, WHS, leave) and the steps in your disciplinary process. A comprehensive Staff Handbook Package keeps everyone aligned.
- Performance Management Pack: templates for warnings, performance improvement plans and termination steps, such as a performance management process and an employee termination documents suite.
- Show Cause and Warning Letters: confirm issues, expectations, timeframes and consequences in writing, creating a clear evidence trail. See our guide on show cause letters.
- Investigation Procedure: for serious allegations, pair your process with appropriate steps such as temporary suspension on pay while you investigate; refer to suspending pending investigation.
Good documents don’t replace fairness, but they make fairness easier to deliver - and to prove.
Key Takeaways
- There is no fixed number of warnings before dismissal in Australia - fairness and reasonableness in the circumstances are what count.
- Use a staged process for performance or lower-level conduct issues: clear expectations, a chance to respond, support to improve, and documented warnings if needed.
- Serious misconduct can justify summary dismissal after a fair investigation and an opportunity for the employee to respond.
- Probation doesn’t remove the need for fairness; unfair dismissal eligibility depends on the minimum employment period, and general protections apply from day one.
- Reduce risk with strong foundations: a tailored Employment Contract, clear policies in a Staff Handbook, and a consistent performance management process.
- Keep thorough records at every step - if challenged, your documentation is your best evidence that the decision was fair.
If you’d like a consultation on warnings, managing underperformance or fair dismissals, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
