Summary Dismissal and Serious Misconduct 

The term summary dismissal” means instant dismissal or dismissal without notice. 

Generally employees can only be summarily dismissed where they are guilty of “serious misconduct”. 

Serious misconduct is said to arise 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. In other words, it is a term reserved for the worst types of misconduct. 

Where an incident of serious misconduct arises, an employer should investigate the matter immediately or as soon as possible after the employer has been made aware of the allegation.

Examples of Serious Misconduct

Examples of serious misconduct 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;
• Criminal activity outside of work where such activity is inconsistent with the employee’s contract of employment; and
• Bullying or harassment (including sexual harassment) of others in the workplace.

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 in a formal disciplinary meeting. Usually, suspension on full pay will go on for a short time such as one or two days.

Procedural Fairness

Where serious misconduct is alleged, employers should:

• Suspend the employee immediately citing the severity of the allegation(s);
• Investigate the allegations thoroughly;
• Issue the employee with a written direction to attend a formal meeting, setting out the allegations against them in writing in as much detail as possible;
• Allow the employee sufficient time to prepare for the meeting (eg 24 to 48 hours);
• Allow the employee to attend the meeting with a support person if they wish;
• Allow the employee a chance to respond to the allegations in the meeting;
• Ask the employee to specifically comment on why they think summary dismissal would not be appropriate;
• Take a note of everything the employee says in the meeting;
• Close the meeting and say you will consider everything the employee has said, confirm to the employee that they are still suspended on full pay.

Reaching a Decision

A decision to terminate the employee should only be made after due process has been followed and if your investigation indicates that the  allegations against the employee in all probability occurred. 

Summary dismissal is only appropriate where you consider the employee’s behaviour was so bad that it would be inappropriate to employ them a moment longer – i.e. that it would be inappropriate to employ them through their notice period.

Once you have reached a decision you should confirm this in writing to the employee, setting out the reasons that you have reached your decision. If you are summarily dismissing the employee then their employment will end immediately and they will not be entitled to a payment in lieu of notice.

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 blog 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.