Summary dismissal, often referred to as instant dismissal, is an action an employer can take when an employee’s conduct is deemed to be of such a serious nature it warrants immediate termination of their employment, without notice. Understanding the framework surrounding summary dismissal is crucial for employers to ensure fair and lawful practices are maintained in the workplace, and to avoid claims of unfair dismissal.
What is summary dismissal?
Summary dismissal occurs when an employer terminates an employee’s contract without notice due to serious misconduct. Serious misconduct can include, but is not limited to:
- Theft or fraud
- Violence or threats of violence
- Serious breaches of workplace safety procedures
- Harassment or discrimination
- Insubordination
- Breach of confidentiality
When a summary dismissal occurs, an employer is still required to pay the employee any outstanding wages, unused annual leave and long service leave (if applicable). The employee only loses their entitlement to their notice period and associated pay when they are terminated via a summary dismissal.
What are the requirements for invoking a summary dismissal?
The principles governing summary dismissals are primarily outlined in the Fair Work Act 2009 and the relevant industrial instruments such as awards and enterprise agreements. Key considerations include:
- Genuine reason: Employers must have a valid reason for summary dismissal. The employee’s misconduct must be serious enough to justify the immediate termination of employment.
- Procedural fairness: Even in cases of summary dismissal, employers are required to follow a fair process. This typically involves:
- Conducting an investigation into the alleged misconduct.
- Allowing the employee an opportunity to respond to the allegations.
- Making a decision based on evidence gathered during the investigation.
- Right to appeal: Employees should be informed of their rights and may have the option to appeal the dismissal through internal procedures or by lodging a complaint with the Fair Work Commission.
What steps should I take before proceeding with a summary dismissal?
To ensure compliance with legal obligations, employers should consider the following steps before proceeding with a summary dismissal:
- Investigate the allegations: Gather all relevant information and evidence regarding the alleged misconduct. This may involve speaking with witnesses and reviewing documentation.
- Provide the employee with an opportunity to respond: Before making a dismissal decision, allow the employee to explain their side of the story. This step is critical for maintaining procedural fairness.
- Make an informed decision: After reviewing all evidence and considering the employee’s response, employers should determine whether the misconduct warrants summary dismissal.
- Document the process: Keep detailed records of the investigation, discussions held and the final decision. Documentation is essential for defending against any potential claims of unfair dismissal.
- Communicate the decision clearly: When terminating the employee, communicate the decision clearly and provide the reasons for the dismissal in writing. This ensures transparency and may help mitigate future disputes.
If the summary dismissal process is not handled properly, then the employee may have grounds for an unfair dismissal claim. While each matter will be determined on the basis of actual justice, an employee is more likely to make a claim based on the perceived level of justice or injustice they receive during the dismissal process.
How can Business Chamber Queensland help?
Summary dismissal is a significant action that requires careful consideration and adherence to legal requirements. For employers, understanding the grounds and procedures for summary dismissal is essential to avoid potential claims of unfair dismissal. Ultimately, maintaining fair and transparent workplace practices benefits both employers and employees, fostering a healthier working environment. Employers can contact Business Chamber Queensland’s Workplace Advisory Services team for assistance in handling a summary dismissal.
