What is Summary Dismissal?

Summary dismissal refers to instant dismissal or dismissal without notice. It is a harsh form of discipline you can impose as an employer. You should exercise caution when seeking to summarily dismiss an employee for engaging in serious misconduct. This article discusses the:

• types of misconduct that may warrant summary dismissal; and
• the recommended process for dismissal in these circumstances.

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What is Serious Misconduct?

Serious misconduct includes willful or deliberate behaviour by an employee that causes a serious and imminent risk to the:

• health and safety of any person; or
• reputation, viability, or profitability of your business.

Depending on the circumstances, conduct such as theft, fraud, assault, and intoxication at work may be considered serious misconduct. However, you should be cautious when proceeding with summary dismissal, as each case is unique. This means that actions that amount to serious misconduct in one case may not amount to serious misconduct in all circumstances. 

Risk of a Claim for Unfair Dismissal

One of the primary risks of summarily dismissing an employee is the risk of an unfair dismissal claim against your business. Your employee may argue that their dismissal was harsh, unjust, or unreasonable in the circumstances. 

For example, if you summarily dismiss an employee for serious misconduct, they may argue that dismissal was a disproportionate response to their actions. This is possible even if you had a reason for the dismissal, where they can establish that your reaction was too harsh.

When considering whether a dismissal was unfair, the Fair Work Commission (FWC) will have regard to whether:

• there was a valid reason for the employee’s dismissal; and
• you granted the employee procedural fairness.

This means that even when you have the right to dismiss an employee summarily under the circumstances, you must still treat them fairly throughout the dismissal process. This requires you to:

• specify the alleged conduct to the employee;
• allow them to respond; and
• genuinely consider their response and justification.

The FWC considers failure to provide procedural fairness as a severe defect in procedure. This could render the dismissal unfair and expose you to the risk of an unfair dismissal claim.

Other Legal Risks of Summary Dismissal

If you dismiss an employee summarily, you may also be at risk of a claim in:

• general protections;
• discrimination; or
• breach of contract.

General Protections Claim

A general protections application requires your employee to establish that adverse action was taken against them because: 

• of a protected attribute; or
• they exercised or proposed to exercise a workplace right.

In this case, summary dismissal could potentially be taken to constitute adverse action. Your employees’ protected attributes refer to personal qualities that do not affect their performance, such as their:

• race;
• gender; 
• religion; or 
• age. 

On the other hand, their workplace rights include taking personal leave or requesting a safe environment.

Discrimination

There is also a risk that your employee could bring a discrimination complaint against your business to: 

• the Australian Human Rights Commission; or 
• an applicable State Tribunal. 

In this case, they would argue a claim on the basis that they were treated less favourably or discriminated against on unlawful grounds.

Breach of Contract

Suppose your employee established that their alleged misconduct was not serious enough to justify being summarily dismissed. In that case, you may also risk breaching their contract regarding their termination of employment.

Process for Summary Dismissal

To manage the risk of your former employee taking legal action against you, you must follow the proper disciplinary process for dismissal. For example, the key steps you must undertake as part of this process include: 

1. establishing the facts and considering suspension with full pay if the alleged conduct amounts to serious misconduct;
2. writing to your employee outlining the allegations, as well as a date and time for a disciplinary meeting;
3. putting them on notice that if the misconduct is proven, this may result in termination of their employment;
4. providing your employee with advance notice of the disciplinary meeting (e.g. 24-48 hours’ notice);
5. allowing your employee to have a support person present during the disciplinary meeting;
6. allowing your employee to respond to the allegations of serious misconduct during the meeting before you decide to dismiss them; and
7. confirming that you will notify your employee of the outcome of the disciplinary meeting once your company has considered any matters raised by the employee during the meeting.

Therefore, if you believe you have enough evidence to prove your employee’s behaviour amounts to serious misconduct, you should: 

• verbally advise your employee of the outcome of the disciplinary process; and
• provide a letter confirming that you have summarily dismissed them.

Small Business Fair Dismissal Code

The Small Business Fair Dismissal Code (the Code) offers small businesses a simplified dismissal process to ensure that they meet the requirements of the FWC. A small business includes any employer with fewer than 15 employees. The Code provides a checklist that you can use as evidence in a claim for unfair dismissal to demonstrate that you have complied with your obligations.

The Code allows small business employers to dismiss an employee without notice or warning. However, this must only occur if you believe on reasonable grounds that the employee’s conduct is serious enough to warrant immediate dismissal. Examples of serious behaviour include:

• theft;
• fraud;
• violence; and
• serious breaches of occupational health and safety procedures.

The threshold for serious misconduct under the Code is significantly easier for small business employers to meet than for employers with 15 or more employees.

Key Takeaways

In conclusion, summary dismissal is one of the harshest forms of discipline you can impose as an employer. Consequently, the threshold for conduct to meet the definition of serious misconduct is incredibly difficult to meet. For this reason, you must take a step back and objectively consider whether an employee’s misconduct is serious enough to justify summary dismissal. Furthermore, even where you have a valid reason to summarily dismiss an employee, you must follow a procedurally fair process. 

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