Performance warnings
Section 387(e) only has something to say if the dismissal is actually about performance. Where it does apply, a warning that doesn’t do four specific things won’t satisfy it — no matter how firmly it was delivered.
What you’ll be able to do
- Recognise when s.387(e) applies at all, and when it’s simply irrelevant.
- Check a warning against the four things it has to do, not just whether one was sent.
- Spot a warning that sounds serious but is too vague, or aimed at the wrong issue, to count.
When this limb applies — and when it doesn’t
Section 387(e) asks: if the dismissal relates to unsatisfactory performance, had the person been warned about that unsatisfactory performance before the dismissal? If a dismissal relates to unsatisfactory performance, s.387(e) requires the Commission to consider whether the employee was warned about it before dismissal [2022] FWC 1966 at [81].
That opening condition matters more than advisers often give it credit for. In Szkwarek v Omega Network, the employer dismissed Mr Szkwarek for lateness and failing to notify his supervisor, after a “final warning” about the same behaviour. The applicant argued he hadn’t been warned specifically about “timekeeping” as a performance issue. The Commission disagreed with the framing entirely: lateness, failing to notify, and failing to attend a disciplinary meeting were matters of conduct rather than performance [2022] FWC 1966 at [84]. Because the dismissal wasn’t for unsatisfactory performance, s.387(e) simply didn’t bite — the Commission only went on, in the alternative, to find that he’d been warned anyway. The application was dismissed [2022] FWC 1966 at [100].
The adviser’s first question isn’t “was there a warning?” — it’s “is this actually a performance case?” Module 5 covers that capacity/conduct line in full. If the real reason is conduct, don’t reach for this limb at all; arguing it only invites a finding like Szkwarek’s.
What a warning actually has to do
Where the dismissal is genuinely about performance, the Commission applies a four-part test, repeated across many decisions: a warning for the purposes of s.387(e) must clearly identify the areas of deficiency in the employee’s performance, the assistance or training that might be provided, the standards required, and a reasonable timeframe to meet them [2022] FWC 520 at [51]-[53].
On top of that checklist, the warning must also make it clear that the employee’s employment is at risk unless the performance issue identified is addressed — it is not enough for the employer to merely exhort the employee to do better [2022] FWC 520 at [52].
The four things a warning must do
Applied in Yap v Club Assist Pty Ltd [2022] FWC 520 at [51], drawing on McCarron v Commercial Facilities Management and Fastidia Pty Ltd v Goodwin — neither independently located in this corpus; check them against the original before relying on them.
- Clearly identify the areas of deficiency in the employee’s performance.
- Identify the assistance or training that might be provided.
- State the standard required.
- Give a reasonable timeframe within which to meet that standard.
- Make it clear that the employee’s employment is at risk unless the issue is addressed — exhortation to “do better” isn’t enough.
A “final warning” doesn’t need any particular form of words. What it can’t skip is that last element: the employee has to be able to read it and understand that failing to improve could cost them their job. A warning that lists faults but never says what happens next is doing half the job.
The warning has to be about the right thing
A warning that exists, and ticks every box above, still won’t help the employer if it isn’t about the performance problem the employer later relies on to dismiss. The nature of a s.387(e) warning requires a sufficient nexus between the warning and the substantive matter of concern — the warning must be given about that unsatisfactory performance, and not in some disassociated context [2024] FWC 2078 at [129].
Taylor v CJD Equipment shows what satisfying that nexus looks like in practice. The employer issued written warnings raising continuing concerns about the same KPIs and sales targets that ultimately grounded the dismissal. The Commission found the nexus was sufficiently made out, because the warnings were in writing and made in the context of the same continuing concerns that led to termination [2024] FWC 2078 at [131]. The dismissal was not unfair [2024] FWC 2078 at [139].
The practical lesson: if you warn someone about missed KPIs in March and dismiss them in June for a completely different, never-raised performance problem, the March warning does nothing for you under s.387(e). Match the warning to the reason, every time you rely on one.
What the Commission looks for in practice
- A document, not a memory. “I told him a few times” rarely survives cross-examination as well as a dated letter or email.
- Specifics, not adjectives. “Your performance needs to improve” identifies nothing. Name the task, the metric, the gap.
- A path, not just a problem. What training, support or adjusted timeframe is the employer actually offering?
- The stakes, stated plainly. The employee should be able to point to a sentence that says their job is at risk.
- Currency. A warning from eighteen months ago, about an issue since resolved, won’t support a dismissal for a different lapse today.
- Consistency with the reason given. The warning and the termination letter should be about the same thing.
How warnings fail
It isn’t a performance case
Dismissed for lateness and failing to notify a supervisor — conduct, not performance, so s.387(e) was never engaged. [2022] FWC 1966 at [84]
Before arguing about the warning, confirm you’re even in the right box.
No warning, full stop
No evidence the employee was ever warned about the alleged performance issues, or told his job was at risk. [2024] FWC 1449 at [26]
A performance file with no warning in it is a performance file with a hole in it.
A warning that only exhorts
The warning letter named some issues but never said with precision what had to improve, nor that the job was at risk. [2022] FWC 520 at [52]
“Please do better” is not a s.387(e) warning. Name the gap, the standard, and the stakes.
Same issue, warning to dismissal
Written warnings tracked the same KPI and sales-target concerns that later grounded the dismissal — the nexus the Commission looks for. [2024] FWC 2078 at [131]
Keep every warning pointed at the problem you might eventually dismiss for.
Adviser checklist
- Threshold
- Content of the warning
- Fit with the dismissal
- Before deciding
Practice scenario: the quarterly review
Fictional scenario. Write your answers, then reveal the model answer.
This is a fictional scenario. Priya is a customer service team lead at a mid-sized retail chain, two years’ service, no prior warnings. Her manager emails her in February after a rough quarter.
Priya’s call-handling times have been below target since before February. Customer satisfaction scores were not raised with her at any point before the dismissal letter.
- No. The February email is encouragement, not a warning. It doesn’t name call-handling times or customer satisfaction specifically, doesn’t offer any training or support, sets no standard or timeframe, and never says her job is at risk — it’s the “please do better” problem from Yap v Club Assist above.
- Missing: any mention of the actual metrics relied on in June; any support or coaching offered; a clear standard and date to meet it by; a statement that continued underperformance could lead to dismissal. Customer satisfaction scores were never raised at all before the dismissal letter — a brand new issue, with no warning behind it.
- A proper warning should: name call-handling time and customer satisfaction scores specifically; state the required standard (e.g. “average call-handling time under X minutes by [date]”); offer a concrete step (coaching sessions, a revised script, a review date); and say plainly that failing to meet the standard by that date puts her ongoing employment at risk.
Where it could land, depending on what else comes out:
Decisions cited
Check each paragraph reference against the published decision on the FWC website before relying on it. McCarron v Commercial Facilities Management, Fastidia Pty Ltd v Goodwin and BlueScope Steel Limited v Sirijovski are cited as quoted in later decisions and still need checking against the original — none is independently located in this corpus pass.
| Decision | Outcome (confirmed from the text) |
|---|---|
| [2024] FWC 2078 Taylor v CJD Equipment Pty Ltd | Application dismissed — the applicant's dismissal was not unfair, confirmed at [139]. On s.387(e), the Commission found the written performance warnings had a sufficient nexus to the underperformance ultimately relied on for dismissal (continuing KPI and sales-target concerns raised in writing), satisfying s.387(e) — confirmed at [131]. [139] |
| [2024] FWC 1449 Mustafa v Core Service Holdings Pty Ltd | Dismissal found harsh, unjust and unreasonable — confirmed at [30]; compensation of four weeks' pay ($5,261.44 gross) ordered — confirmed at [44]. On s.387(e), the Commission found there was no evidence the applicant was warned about any alleged performance issues or advised that his employment was at risk — confirmed at [26]. [30] |
| [2022] FWC 520 Yap v Club Assist Pty Ltd | No valid reason for dismissal found; the dismissal was held to be unjust and unreasonable and the applicant was reinstated under s.391(1)(a), with continuity of employment and lost remuneration orders — confirmed at [78]-[79]. On s.387(e), the Commission held that the warning letter relied on by the employer did not constitute a warning about unsatisfactory performance for the purposes of s.387(e), because (among other things) it was merely exhortatory and did not identify with precision what the employee needed to do to improve — confirmed at [51]-[53]. [53] |
| [2022] FWC 1966 Szkwarek v Omega Network Pty Ltd | Application dismissed — the dismissal was not harsh, unjust or unreasonable, confirmed at [100]. On s.387(e), the Commission found the applicant's lateness, failure to notify and failure to attend a disciplinary meeting were matters of conduct rather than performance, so whether he had been warned about unsatisfactory performance was not a relevant consideration — confirmed at [84] (the Commission went on to find, in the alternative, that he had in fact been warned). [100] |
- McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd — quoted in [2022] FWC 520 at [51]. Check against the original before relying on it.
- Fastidia Pty Ltd v Goodwin (2000) 102 IR 131 — quoted in [2022] FWC 520 at [52]. Check against the original before relying on it.
- BlueScope Steel Limited v Sirijovski — quoted in [2024] FWC 2078 at [129]. Check against the original before relying on it.