Two Very Different Situations
The rules around warnings before dismissal depend entirely on the reason for the termination. The Fair Work Act treats performance-related dismissal and serious misconduct very differently.
If you're dismissing for underperformance, repeated lateness, attitude, or ongoing conduct issues — warnings are a core part of a fair process. Without them, the dismissal is likely to be found unfair.
Theft, violence, intoxication at work, or serious safety breaches — you can dismiss immediately without prior warnings. But you must still follow a fair process in the moment.
Performance Dismissal — What Fair Work Expects
There is no law that says you must issue exactly one, two, or three warnings. What the Fair Work Act 2009 (Cth) requires is a fair process — and warnings are the most visible evidence of that process.
There is no magic number of warnings in the Fair Work Act. What the Commission looks for is evidence of a fair process — and warnings are the most visible proof you gave one. No warnings usually means no defence.
In practice, the Commission looks for evidence that:
The employee knew what standard was expected. They were told specifically and clearly what the problem was. They were given a genuine opportunity to improve. They were given reasonable time to do so. The warnings were documented in writing. The termination was not a surprise.
At the Fair Work Commission, process matters more than whether you were right. A valid reason with a flawed process can still cost you.
A venue owner who fires a waiter for ongoing lateness after one informal chat and no written warning is almost certainly looking at an unfair dismissal finding — even if the lateness was real and documented.
For performance dismissal in hospitality: one informal discussion, one formal written warning with a specific improvement period, a review, and then — if no improvement — termination. This is the minimum most commissioners will accept as fair. More is better.
What a Valid Warning Must Include
A verbal conversation is not a warning. A vague note is not a warning. For a warning to protect you in a Fair Work claim, it must be specific, written, and documented.
Not "your attitude needs to improve" — but "on 12 March you were 45 minutes late for your 6pm shift without notifying your manager. This is the third instance in six weeks."
Note any informal conversations or verbal warnings that preceded this formal warning. This builds the documented timeline.
Be clear about exactly what is required. "You must arrive on time for all rostered shifts. If you cannot attend, you must notify your manager at least two hours before your shift."
Typically 2–4 weeks for conduct, 4–8 weeks for performance. Giving someone 3 days to improve is unreasonable and will not hold up at Fair Work.
"If this issue continues, further disciplinary action may result, up to and including termination of your employment."
Give the employee a copy of the warning and the opportunity to add their comments or response. Their signature acknowledges receipt, not agreement.
Serious Misconduct — The Exception
For genuine serious misconduct, you do not need prior warnings. A single act of theft, violence, or intoxication can justify immediate dismissal without any previous written warnings in their file.
However — and this is critical — you must still follow a fair process at the time of the incident. Even in clear-cut cases, skipping this step is one of the most common reasons dismissals are overturned. This means investigating, notifying the employee of the allegations, giving them an opportunity to respond, and considering their response before deciding to terminate. See our guide on firing someone on the spot in Australia for the full process.
The most common and expensive mistake: Dismissing for serious misconduct without any process at all. The Fair Work Commission has overturned dismissals where the misconduct was genuine — theft on CCTV, for example — because the employer did not give the employee an opportunity to respond. The process matters regardless of the evidence.
What Not to Do Before You Dismiss
These are the mistakes that turn a legitimate dismissal into an expensive one:
Probation — Not What Most People Think
Many venue owners believe probation means they can fire someone for any reason, any time, without process or consequence. This is incorrect in two important ways. Probation reduces risk — it doesn't remove it.
First, if the employee has not yet served the minimum employment period (6 months, or 12 months for businesses with fewer than 15 employees), they cannot make an unfair dismissal claim — so the absence of warnings is not a legal issue for that specific claim type. But they can still make a general protections claim for any period if the dismissal was for an unlawful reason — for example, because they complained about a workplace right, or because of a protected attribute like pregnancy or disability. There is no minimum period for general protections.
Second, even within probation, having a documented reason and process is far better than having none. It demonstrates good faith and protects against general protections claims.
Frequently Asked Questions
Do I have to give a warning before firing someone in Australia?
How many warnings do I need to give before I can fire someone?
Does a warning have to be in writing?
Can I skip warnings for serious misconduct?
What happens if I dismiss someone without a warning?
Can I fire someone during probation without a warning?
What should a formal warning letter include?
At the Fair Work Commission, process matters more than whether you were right. Most unfair dismissal findings aren't about whether the employee deserved to be fired — they're about whether the employer followed the right steps first.
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