Summary dismissal – you’re out!

In the first of our 2-part series on termination of employment, we look at summary dismissal.

A summary dismissal is the immediate termination of a worker’s employment due to their conduct or behaviour.

The Fair Work Ombudsman considers it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures.

In most instances involving termination of employment, the worker is entitled to the same pay they’d normally receive if they worked out their notice period. Summary dismissal however is dismissal without notice. An employee summarily dismissed:

• leaves immediately
• does not have a notice period
• does not get paid notice pay

As with any termination of employment situation, the employer should consider all factors before making a final decision. To minimise the risk around the employee bringing a successful unfair dismissal claim against their business, the employer should:

• communicate the alleged behaviour/conduct matter to the employee;
• provide the employee the opportunity to respond; and
• genuinely consider the employee’s response and justification before making a final decision.

A dismissal must be for valid reasons and should not be harsh, unjust or unreasonable.

When considering whether a dismissal was unfair, the Fair Work Commission will consider whether:

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

Depending on the circumstances, it may also be appropriate for the employer to report allegations of theft, fraud or violence to the police. The employer however must have reasonable grounds for making any such report.

As with any termination of employment situation, maintaining accurate records of events, discussions with the worker and provision of written notification of the dismissal to the employee is crucial.

Summary dismissal has immediate effect. It is a severe step to terminate a worker’s employment without providing notice of termination (or payment in lieu of notice), so it may be prudent to seek advice about the matter before taking action. Such advice can be from an employment lawyer or an experienced HR Consultant. 

In our next blog, we’ll check out a termination of employment resource available to employers with fewer than 15 employees: the Small Business Fair Dismissal Code.