The information on this page applies only to employers and employees in the WA state industrial relations system. The state system covers businesses which operate as sole traders, unincorporated partnerships, unincorporated trust arrangements as well as any incorporated associations or not for profit bodies that are not trading or financial corporations. The Guide to who is in the WA State System has more detail.
This information does not apply to any business which operates as a Pty Ltd business and is a trading or financial corporation nor to any incorporated association or not for profit body that is a trading or financial corporation. These businesses and organisations are in the national fair work system and should visit the Fair Work Ombudsman website for information on employment laws.
Poor work performance by an employee
When an employee’s work performance is not meeting the required standard, action to help the employee improve their performance should be taken. Best practice includes:
- providing the employee an opportunity to give their point of view and provide reasons for the underperformance
- checking that the employee understands the required work standards
- providing additional training if needed
- considering work adjustments in response to issues raised by the employee, for example flexible or reduced hours to deal with personal or family commitments
- monitoring employee performance more closely and giving more frequent feedback
- allowing the employee a reasonable amount of time to improve
- clearly communicating the possible consequences of not reaching the required performance standard.
Are three warnings required?
No, but it is good practice for the employee to be warned that failure to reach the required work standard could result in termination.
Employers should ensure that discussions about performance standards are documented so it can be demonstrated that genuine attempts were made to assist the employee to improve – provide copies to the employee.
What if an employee does something seriously wrong?
Serious misconduct is different to poor work performance. Serious misconduct is behaviour that could damage the employer’s business, or is inconsistent with the employment contract – for example, causing a serious safety risk; committing theft, fraud or assault; or being intoxicated at work. Employers are not required to give notice in the case of serious misconduct.
In cases where employee misconduct has been established, the employer will need to determine if the misconduct is serious enough to warrant immediate dismissal without notice (serious misconduct) or whether another outcome is more appropriate - for instance, a warning, a written reprimand or dismissal with notice.
Not all misconduct is sufficiently serious to warrant summary dismissal without notice. In determining a claim of unfair dismissal, the Western Australian Industrial Relations Commission will examine the context of the alleged misconduct. Employers alleging serious misconduct will need to be able to demonstrate that summary dismissal was the only option available.
In determining whether an employee has engaged in misconduct (including serious misconduct) it is important that employers follow a procedurally fair process. Some of the steps employers can take to ensure procedural fairness include:
- Immediately arranging a meeting with the employee after alleged misconduct has occurred, and advising the employee that they are able to have a support person present
- Presenting all of the facts and evidence to the employee surrounding the alleged misconduct (e.g. notes taken from interviews with other employees or clients who may have seen what took place)
- Providing the employee with an opportunity to respond to the allegations and explain their actions (this can either be at the meeting or at a later point in time in a written explanation)
- Writing a letter or email to the employee after the meeting (or after the employee has responded) confirming the facts of the alleged misconduct, and also confirming the employee's explanation. This should state that the employer will consider all the evidence, and make a decision concerning the future of the employee's employment based on that evidence.
If, after considering all the evidence, the employer comes to the conclusion that the employee has in fact engaged in serious misconduct, the employer may then terminate the employee without giving them notice. This should be done in writing, and the employee should always be informed why they are being terminated.