When is a warning “valid”

Lessons from Keane v The Trustee for Roscon Property Services Pty Ltd

A recent decision of the Fair Work Commission provides a useful reminder that warnings relied upon in performance based dismissals must be clear, current, and properly framed. Employers cannot rely on vague historical concerns or warnings that fail to notify employees their employment is at risk.

Background

The applicant, Ms Keane, commenced employment with the respondent in 2022 and was dismissed in 2025, after approximately three years of service.

The circumstances leading to the dismissal included:

·         The employee left work early due to illness (a migraine)

·         The employer alleged that, because she left early, she failed to complete a time sensitive task.

·         Ms Keane was on sick leave at the time the dismissal occurred and did not see the dismissal email because she was not monitoring her work emails.

·         She only became aware of the dismissal when she returned to work the following week.

·         The employer terminated her effective immediately with pay in lieu of notice.

The employer submitted that the dismissal amounted to summary dismissal, citing alleged ongoing performance issues and absences.

Argument 1- Was the dismissal a summary dismissal?

Summary dismissal requires serious misconduct such as:

·         Theft;

·         Fraud;

·         Violence; or

·         Serious breaches of occupational health and safety procedures.

The Commission rejected the employer’s submission that the termination was a summary dismissal and held that the conduct relied upon by the employer did not meet this threshold.

Argument 2- Problems with the Employer’s Reliance on Performance Issues

The employer also argued that the dismissal was justified due to ongoing performance concerns and absences. However, the Commission identified several issues:

1.      Performance concerns were not included in the termination letter.

2.      No warning indicated that the employee’s employment was at risk.

3.      The warnings relied upon were issued approximately three years prior, making them no longer relevant.

These deficiencies meant the employer could not yet rely on the warnings to justify dismissal.

What Constitutes a Valid Warning?

The Commission referred to the principles outlined in Fastidia v Goodwin, which state that a valid warning should:

1.      Identify the specific aspects of the employee’s performance that are of concern, and

2.      Make it clear that the employee’s employment is at risk unless the issue is addressed

Without both elements, a warning may carry little weight in an unfair dismissal proceeding.

Consideration Under the Fair Work Act

The Commission assessed the dismissal under section 387 of the Fair Work Act 2009, which requires consideration of whether a dismissal is harsh, unjust or unreasonable.

The Commission found that the dismissal was harsh, unjust and unreasonable., noting that the employee ha not been given clear notice of the concerns or an opportunity to address them before the termination.

Practical Lessons

This decision highlights several important steps employers should take when managing performance issues.

1.      Provide Clear and Specific Warnings

Warnings should clearly state:

·         The performance issue

·         What improvement is required

·         The timeframe for improvement

·         The consequences if improvement does not occur

2.      State that the Employment is at Risk

A warning should explicitly inform the employee that their employment may be terminated if the issue is not rectified.

3.      Ensure Warnings are Current

Very old warnings may not be relied upon. Employers should ensure warnings:

·         Remain relevant to the conduct relied upon; and

·         Are not so old that they lose probative value

4.      Follow a Fair Process before Dismissal

Employers should ensure employees:

·         Are informed of the concerns

·         Are given the opportunity to respond

·         Have a reasonable opportunity to improve

5.      Ensure Termination Letters Reflect the True Reason

The reasons relied upon for dismissal must appear in the termination correspondence. Employers may struggle to rely on reasons raised later.

6.      Avoid Dismissing Employees While They Are on Leave Without Due Process

Dismissals that occur while an employee is on sic leave may raise procedural fairness concerns if the employee has not had an opportunity to respond. Further, they may also enact the general protections provision under the Fair Work Act.

Summary:

·         A warning must identify the performance issue and state that employment may be at risk

·         Outdated and vague warnings cannot justify dismissal

·         Employees must be aware of the concern and given the opportunity to improve

·         In Keane v he Trustee for Roscon Property Services Pty Ltd, the dismissal was found harsh, unjust, and unreasonable because these steps were not followed.

If you require assistance with dismissal of an employee please reach out to our experienced employment law team.

This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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