There are some common myths about employment law that seem to arise frequently with both clients and non-employment lawyers alike. Here, I “myth bust” seven of the most common ones, writes Paul O’Halloran.
There is a myth, particularly in the retail and hospitality industries, that an employee must be given three warnings before they can be dismissed. This is totally incorrect. Unfair dismissal laws contained in the Fair Work Act say absolutely nothing about the three-strike myth. Rather, section 387 of the FW Act provides eight criteria for considering whether a dismissal was “harsh, unjust or unreasonable” (for employees with access to unfair dismissal). This includes whether there was a “valid reason” for the dismissal related to the person’s capacity or conduct. In relation to unsatisfactory performance, a relevant consideration will be whether the person had been warned about that unsatisfactory performance before the dismissal.
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