Can you dismiss someone without a written warning? Here’s what the law says

You’ve probably heard people say: “You can’t fire someone unless you’ve given them three written warnings.” It sounds like it might be right but it’s not. 

Australian law doesn’t require three written warnings – or even sometimes one – before you can fire someone. Instead, the test under the Fair Work Act 2009 is whether a dismissal is “fair, valid and reasonable”.

But if you’re thinking about letting someone go without first putting something in written words, be careful. While the absence of a written warning doesn’t make a dismissal automatically unfair, it often makes it much harder to defend.

So when can you dismiss someone without a written warning? And when is it a legal and reputational risk?

Here’s what every HR leader, people manager and business owner needs to know.

The standard process: Written warnings and procedural fairness

There’s no black-letter law that says you must give a written warning. But the Fair Work Commission always expects you to follow a fair and reasonable process. That’s especially true in cases of alleged poor performance or ongoing behavioural issues.

The FWC has made it clear that, as a matter of practicality, this should usually involve:

• At least one clear warning (ideally in writing)
• Evidence of what the problem was and how it was communicated, and
• An opportunity to improve, with support if appropriate. 

In other words, if someone’s underperforming, you can’t just fire them out of the blue.

Instead, the Fair Work Commission’s website puts it like this: employers must give workers a “reasonable chance to fix the problem” unless the conduct is so serious that immediate dismissal is justified.

Putting the warning in writing protects the business even more than it protects an employee. That’s because, if an employee lodges an unfair dismissal claim, your written warning becomes your evidence that:

• The employee knew what the problem was
• They had a chance to improve, and 
• You followed a clear, reasonable process.

And no, a warning buried in a vague calendar invite doesn’t usually cut it. Neither does a passing comment during a performance review or a casual mention in the break room. 

The FWC wants to see clear, documented communication that leaves no room for ambiguity.

For example, if an employee is missing deadlines, you should document each incident, flag them clearly in a one-on-one or performance review, outline what “improvement” looks like (e.g. no missed deadlines for 30 days), and give them the tools or support to get there – whether that comes in the form of training, coaching or closer supervision.

The exceptions to the rule: When a written warning isn’t necessary

There are two key exceptions where dismissal without a written warning is likely to still be lawful.

1. Serious misconduct

If someone engages in serious misconduct – i.e. theft, assault, wilful damage, serious breach of policy or gross insubordination – employers have the option to summarily dismiss them. 

But, if you’re going down this track, you need to tread carefully:

• The misconduct must be significant enough to break the employment relationship irreparably.
• You still need to investigate the incident and give the employee a chance to respond, you can’t usually just sack them on the spot.
• The decision must be based on facts and not assumptions or hearsay.
• Jumping to summary dismissal without due process, even in extreme cases, can still be deemed unfair.

2. Casual employees (but with a big asterisk)

You’re more likely to be able to terminate the employment of a casual employee. However, it’s not a given. Even casual employees can bring an unfair dismissal claim if: 

• They’ve been employed for more than six months (or 12 months in small business)
• Their work was regular or systematic, and
• They had a reasonable expectation of continued employment.

In other words, just because someone is a casual member of staff doesn’t mean you can always apply different rules to them. 

You also need to be mindful that simply calling someone a ‘casual’ doesn’t mean they are in practice. Employees employed after 24 August 2024, are only considered casual if:

• There’s no firm advance commitment to ongoing work (this takes into account several factors), and
• They’re entitled to a casual loading or specific casual pay rate under an Award, Agreement or their employment contract.

3. Probationary employees (but process still matters)

Probationary periods are generally covered by employment contracts. While there’s no maximum probationary period, three to six months tends to be standard. 

When an employee is on probation, they’re still entitled under the National Employment Standards (NES). That means: 

• You still need to give at least one week’s written notice of termination (as per NES and contract terms)
• You still need to follow your own internal policies or contracts
• You must not terminate for a discriminatory or unlawful reason. 

While a written warning isn’t legally required, clear communication and fair expectations still go a long way in avoiding disputes and protecting your brand.

Read more about how to dismiss someone when they’re on probation.

Why these rules exist (and what happens if you ignore them)

The Fair Work Commission doesn’t just ask why someone was dismissed. It looks at how it was done. Was there a valid reason? Was the process fair? Was the communication clear and documented?

If you can’t answer “yes” to all three, you’re at risk, regardless of how justified the dismissal may have been (or at least how justified it felt at the time).

The FWC isn’t moved by gut feeling. It deals in facts, fairness and evidence.

If you get it wrong, the consequences can be serious, including:

• Reinstatement orders, even if the relationship is strained
• Compensation of up to six months’ wages, plus legal costs
• Reputation damage both internally and externally, especially if employees feel you manage performance through fear or favouritism.

More importantly, providing a written warning shouldn’t just be about avoiding legal risk. It should be about building a culture where performance is managed clearly, fairly and with consistency – not through panic

or improvisation.

Checklist for dismissing an employee 

If you’re unsure whether you’ve covered your legal and ethical bases, ask yourself the following questions.

Before dismissal:

• Have I clearly explained the performance or conduct issue?
• Have I given the employee an opportunity to improve?
• Have I provided any necessary support or feedback?
• Is there written documentation (emails, meeting notes or formal warnings)?
• Have I consulted my HR or legal advisor?

For serious misconduct:

• Has there been a proper investigation?
• Has the employee had a chance to respond?
• Is there clear, well-documented evidence that justifies immediate termination?

For casual employees:

• Have they been employed for less than 12 months (or 6 for small business)?
• Have their hours been irregular or inconsistent?
• Do they lack the reasonable expectation of ongoing work?
• Have I confirmed whether unfair dismissal protections might still apply?

If you’re answering “no” or “I’m not sure” to any of the above, pause and get advice. Once the dismissal is done, it’s a lot harder (and more expensive) to undo.

Final thought: Written warnings as your insurance policy

Giving feedback and managing underperformance isn’t always comfortable. But the risks of skipping it are much higher.

Whether you’re dealing with a full-time employee, a casual team member or a short-fused misconduct case, clarity, documentation and fairness always matter.

Because in Australian employment law how you do something often matters almost as much as what you do. 

Want more?

If you’d like to know more about the processes, documentation or legal considerations behind managing dismissals, get in touch with our team of HR experts.