There is no fixed number of warnings before dismissal in Australia. The Fair Work Act 2009 (Cth) does not require one, two or three. For a performance or conduct dismissal, the Fair Work Commission asks whether the employee was told what the problem was, warned that their job was at risk, and given a genuine opportunity to improve. Employers with fewer than 15 employees must also follow the Small Business Fair Dismissal Code, which requires at least one warning (preferably written) and a reasonable chance to improve. Serious misconduct needs no prior warning, but still needs a fair process on the day.
Where the Three-Warnings Rule Comes From
The idea that you need three warnings comes from older enterprise agreements and company disciplinary policies that spelled out their own steps: verbal warning, first written warning, final written warning, termination. Those documents bound the employers who signed them. They were never the law for everyone.
That history matters in one way. If your own policy, contract or enterprise agreement promises a particular number of warnings, you must follow it. Failing to follow your own published process is a procedural failure in its own right, and the Commission will hold you to the standard you set. If you have no such policy, the count is not the test. The fairness of the process is.
What the Fair Work Act Actually Tests
When an unfair dismissal claim is heard, the Commission decides whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act lists what it must consider. Nowhere on that list is a number. The factors are:
- Whether there was a valid reason related to capacity or conduct.
- Whether the employee was notified of that reason.
- Whether they were given an opportunity to respond.
- Whether they were unreasonably refused a support person at discussions about the dismissal.
- For unsatisfactory performance, whether the employee had been warned about it before the dismissal.
- The size of the business and whether it had dedicated HR expertise, and how those affected the process.
- Any other matters the Commission considers relevant.
Read that fifth factor carefully. It asks whether the person had been warned, not how many times. One warning that is specific, in writing, and followed by a real improvement period satisfies it. Three warnings issued in a fortnight to justify a decision already made do not. The Commission looks straight through that pattern.
Small Business: The Fair Dismissal Code
If you employ fewer than 15 people, the Small Business Fair Dismissal Code applies. A dismissal that complies with the Code is deemed fair. For anything other than serious misconduct, the Code requires that:
- You had a valid reason based on the employee's conduct or capacity.
- You warned the employee, preferably in writing, that they risked being dismissed if there was no improvement.
- You gave them a reasonable opportunity to improve, and where appropriate offered training or made clear what was expected.
- You allowed a support person at discussions about the dismissal if they asked for one.
- You can produce evidence of the above. A signed warning letter, dated file notes and a written improvement timeframe are what the Commission expects to see.
The Code says "a warning". Singular. For a small business, one compliant written warning followed by a genuine chance to improve is the legal floor. Most employers give two, because a final warning removes any doubt that the employee knew the next step was termination. That is judgement, not obligation.
Performance vs Conduct: Different Sequences
| Situation | Typical sequence that holds up | Why |
|---|---|---|
| Ordinary underperformance (slow service, missed targets, errors) | Documented conversation, then a written warning with a 4–8 week improvement period, then a final warning if needed, then a show-cause meeting | The Commission expects a genuine opportunity to improve. Performance takes time to change. |
| Repeated minor conduct (lateness, missed procedures, phone on shift) | Documented conversation, then a written warning with a 2–4 week review, then final warning, then show-cause | Conduct can change immediately, so shorter review periods are reasonable. |
| Serious conduct short of summary dismissal (aggression to a colleague, breach of a safety rule without injury) | Investigation, opportunity to respond, then a first and final written warning | One warning is proportionate. A repeat justifies termination. |
| Serious misconduct (theft, fraud, violence, intoxication, serious safety breach) | Investigation, put the allegation, allow a response with a support person, decide, then summary dismissal if warranted | No prior warning is required. A fair process on the day still is. |
The common failure is not too few warnings. It is warnings that do not say anything. "Your attitude needs to improve" is not a warning the Commission will count. A warning has to name the conduct, give dates, state the standard expected, set a review date and say plainly that the job is at risk. See how to write a formal warning letter for the eight required elements.
A Warning Sequence That Holds Up
Name the problem, and write it down the same day
An informal conversation is the right first step for most issues. Its weakness is proof. Send a short follow-up email or make a dated file note. Without that record, the conversation did not happen as far as the Commission is concerned.
Issue a formal written warning with an improvement period
Specific incidents with dates, the standard expected, the support offered, a review date and a plain statement that further breaches may lead to termination. Give the employee time to respond before you finalise it.
Review on the date you set
If the standard has been met, say so in writing. If it has not, the next step is a final warning or, where the first warning already made the consequence clear, a show-cause meeting. Do not let the review date pass silently; that resets the clock in the employee's favour.
Hold a show-cause meeting before deciding
Tell the employee in advance what the meeting is about, that termination is being considered, and that they may bring a support person. Put the reasons to them. Listen to the response. Adjourn before deciding.
Decide, then document the decision
Record why the response did not change the outcome. Give the notice or payment in lieu the award and the Act require. Keep every document together for at least seven years.
Who Can Actually Claim
Warnings matter because unfair dismissal claims exist. An employee can lodge one if they have completed the minimum employment period, which is six months, or twelve months if the employer has fewer than 15 employees. Casuals qualify too, if their employment was regular and systematic and they had a reasonable expectation of it continuing. For that reason, treat a long-term casual exactly as you would a permanent employee when it comes to warnings. See how to terminate a casual employee and firing during probation.
An employee outside the unfair dismissal system can still bring a general protections claim if they believe the dismissal was because of a protected attribute or because they exercised a workplace right, such as raising a pay complaint. Those claims have no minimum service period. A documented warning history is the best evidence that the real reason was performance or conduct.
Frequently Asked Questions
How many warnings do you have to give before dismissal in Australia?
Is one warning enough to dismiss an employee?
Do I need three warnings to fire someone?
Can I give a first and final warning?
Do verbal warnings count?
When is no warning required?
How long does a warning stay valid?
Related guides: do I have to give a warning before firing, procedural fairness explained, what an unfair dismissal claim costs, and managing underperformance.
The number of warnings has never won or lost a case. The record of them has. Keep the record.
Not Sure Where You Are in the Process?
Describe the situation to Fitz. It tells you what a fair next step looks like under your award, generates the warning or show-cause letter, and keeps every document against the employee's record. A qualified HR person is there when the answer needs judgement.
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