INSTANT DISMISSAL FOR SERIOUS MISCONDUCT

Summary dismissal means instant dismissal or dismissal without notice. Serious and wilful misconduct arises when an employee does (or neglects to do) something that clearly indicates the employee no longer intends to be bound by the contract of employment. An employer should investigate an allegation of misconduct immediately or as soon as possible after the employer has been made aware of the allegation.

 

Examples of Serious Misconduct

Reasons which may justify a decision to dismiss an employee for serious and wilful misconduct may include:

  • Wilful disobedience of a lawful instruction;
  • Being affected by or in the possession of alcohol or illegal drugs at the workplace;
  • Obscene language directed towards the employer, staff or customers;
  • Dishonesty, including theft or fraud;
  • Committing a crime in the course of employment;
  • Neglect of duties which damages equipment, animals or other valuables;
  • Fighting at the workplace;
  • Serious breach of safety procedures;
  • Assault or intimidation, or offensive or insulting behaviour or harassment of another person at the workplace;
  • Falsification or destruction of records; and
  • Criminal activity outside of work where such activity is inconsistent with the employee’s contract of employment.

 

Misconduct must be shown to be of a serious and wilful nature and is significantly outside the terms of the employment contract. Care should be taken when terminating an employee for serious misconduct because it is the harshest form of discipline an employer can impose.

 

Investigation & Suspension

As a general rule, if an employer wishes to summarily dismiss they should suspend the employee on full pay to investigate the circumstances of the misconduct. The employee must be given a right of reply to the allegation. Usually, suspension on full pay will go on for a short time such as one or two days.

 

Procedural Fairness

Where misconduct is alleged, employers should:

  1. Stand down the employee immediately citing the severity of the allegation(s);
  2. Raise the allegation(s) with the employee, preferably in a formal meeting, providing as much detail as possible;
  3. Allow the employee a chance to respond to the allegations;
  4. Investigate the allegations thoroughly; and
  5. Communicate the findings to the employee and the action being considered.

 

An employee must be afforded sufficient notice prior to any formal meetings and be given the opportunity to have a support person present at the meeting(s).

 

Reaching a Decision

A decision to terminate the employee should only be made after due process has been followed and if the facts confirm that the substance of the allegation in all probability occurred and that the reason for terminating the employee is justifies instant dismissal in your view.

If the results of the investigation indicate that the allegations are valid and therefore dismissal is the appropriate outcome, employers must then:

  1. Advise the employee that dismissal is being considered based on the findings of the investigation;
  2. Consider the employee’s response and the circumstances of the situation;
  3. Come to a final conclusion regarding whether or not termination is appropriate, and advise the employee of the decision, giving reasons for the decision; and
  4. Confirm in writing.

 

 

About Employment Innovations

Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software.

Disclaimer

The information provided in these knowledge base articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.

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