Summary dismissal is the immediate dismissal of an employee, without notice, for serious misconduct. Even though this may be available for employers as a drastic means of discipline, there are some caveats that need to be considered if this is adopted.
What Does Serious Misconduct Mean?
Under Fair Work Regulation 1.07, serious misconduct means conduct of an employee that:
- Is deliberate or wilful, which is incompatible for continued employment; or
- Causes imminent and serious risk to the safety or health of someone; or
- Causes imminent and serious risk to the business’ profitability, reputation, or viability
Serious misconduct is determined by the circumstances of each case. Examples of serious misconduct can include:
- Sexual harrassment
- Intoxication at work
- Refusal to carry out a reasonable and lawful direction that is consistent with the employee’s contract.
A valid reason for dismissal must be well-founded or sound. Even though there may have been a valid reason for summary dismissal, it can be found that it was a disproportionate and harsh response. Therefore, there is a very high threshold of proof for serious misconduct, and employers need to consider this before summary dismissal.
How Do We Summarily Dismiss Someone?
As an employer, there might come a time where summary dismissal could be needed. This can be achieved through a recommended formal process for the employer, which reduces the risk of the employee initiating legal proceedings.
- Consider suspending the employee, organise a disciplinary meeting, whilst gathering evidence for serious misconduct
- Provide written, advanced notice to the employee about allegations, with the time and date of the scheduled, disciplinary meeting
- Provide the employee with an opportunity for an accompanying support person and ability to respond to allegations during the disciplinary meeting
- Provide notice to the employee that any concerns raised by them will be considered before notifying them of the outcome
A business with less than 15 employees can adopt a simplified dismissal process under the Small Business Fair Dismissal Code, whilst complying with Fair Work Commission requirements. A checklist is contained in the Code to demonstrate that the business has complied with set obligations and has reasonable belief that instant dismissal is warranted.
Summary Dismissal and Employees
Wages until the time of dismissal is payable. However, entitlements such as accrued long service leave may not be accessible due to a summary dismissal.
There are a range of options that summarily dismissed employees can look to for potential protection. One way is through an unfair dismissal claim. The Fair Work Commission will assess if there is a valid reason and whether the business has authorised procedural fairness for the employee to determine the dismissal as unfair. Procedural fairness is crucial to mitigate the unfair dismissal claim and this can be reached if the recommended procedure above is followed.
Additionally, a general protections application can help the employee justify their conduct, through protected attributes or exercising of a workplace right. A protected attribute does not affect workplace performance and includes the employee’s sex or race. Workplace rights include taking leave. The employee may bring proceedings to the business under discrimination to a Tribunal or the Australian Human Rights Commission. If summary dismissal cannot be justified by the employer, the employee can sue for breach of contract.
If you require advice about summary dismissal, or have been summarily dismissed, feel free to contact our legal team via the form on this page or by calling OpenLegal on 1300 337 997