Instant Dismissal – care required

What is instant dismissal?

Instant dismissal (also known as summary dismissal) permits an employer to terminate an employee’s employment immediately. That said, this is only permitted where an employee engages in serious misconduct.

The Fair Work Regulations 2009 (Cth) define ‘serious misconduct’ as follows:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
(b) conduct that causes serious and imminent risk to:
(i)  the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.

Instant dismissal overrides the requirement of a notice period and therefore the employee is not entitled to receive their notice period.

Employers should be mindful to ensure they are not sacking an employee instantly without sufficiently serious grounds. This may expose them to claims for unfair dismissal should they instantly dismiss employees unlawfully or unreasonably.

What types of matters would normally warrant an instant dismissal?

The Fair Work Regulations 2009 (Cth) list the following conduct as being deemed serious misconduct:
(a) the employee, in the course of the employee’s employment, engages in theft, fraud or assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

Therefore, serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. Usually, it is considered to be conduct that damages the relationship of trust between the employer and employee. It is generally accepted that such conduct must have an element of ‘willfulness’ or knowledge about the wrongdoing, or unwillingness by the employee to be bound by the employment contract.

Examples may include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business, theft, fraud, assault, or refusing to carry out a lawful and reasonable instruction that is part of the job. Whether any of this type of conduct justifies instant dismissal depends on the degree of misconduct and all the circumstances of each individual case.

What must the employer do to protect themselves against a successful unfair dismissal claim?

Once you have established that an employee has engaged in serious misconduct, and you wish to terminate that employee’s employment, there are some important procedures to follow.

First and foremost, employers must conduct a proper investigation. This provides grounds for termination and allows for procedural fairness.

After you have conducted the investigation and confirmed that you wish to proceed with the termination then we would suggest you proceed on the following basis:

  1. Arrange a meeting with the employee, and advise the employee that they are able to have a support person present at that meeting.  We would insist that you also have your own witness present at the meeting.
  2. At the meeting, present all the facts and evidence to the employee that surrounds the alleged misconduct.
  3. The employee must then be offered the opportunity to respond to the allegations and explain their actions and version of events. Note: this does not necessarily have to occur at this meeting. You can allow the employee time to consider the allegations and either attend a follow meeting or provide you with a written explanation at a later point in time. In fact, we would consider it prudent to allow the employee time to gather their thoughts and respond at a later date. This could be 24 hours later. Again, this will demonstrate that you have provided procedural fairness.
  4. After the meeting (or after the employee has responded to the alleged misconduct in writing), write a letter or email to the employee confirming the facts of the alleged misconduct, and also confirming their explanation.
  5. In this letter you should state that you will consider all the evidence, and make a decision concerning the future of the employee’s employment based on that evidence.
  6. If, after considering all the evidence (including statements given by witnesses), and after considering the employee’s explanation, you come to the conclusion that the employee has in fact engaged in misconduct, you may then be able to terminate the employee without giving them any notice.
  7. This termination must be done in writing, and you should always give reasons as to why you are terminating the employee.

Additional tips:

If the employee has not already been suspended while you have been conducting the investigation, then after the meeting, the employee should be immediately suspended from duty and escorted from the premises. This will act as a risk management process to protect the business’ tangible and intellectual property. This suspension should be on full pay and the employee should be advised that they are being paid while suspended.

The time taken by an employer to ‘consider’ all of the evidence immediately prior to making a decision should be between 1-3 business days, depending on the circumstances. There needs to be a demonstration of a genuine review of the evidence, and confirmation of the facts provided by the employee prior to termination.

Remember:

It is important to have policies and procedures in place for handling dismissals. It is equally as important to ensure that you treat all your staff in the same manner in relation to matters involving discipline and termination. A case can be won or lost on these types of issues.

Further, in the case of instant or summary dismissal; if an unfair dismissal case is taken by the dismissed employee, the employer bears the onus of proof to prove that the summary dismissal was not unfair. In contrast, unfair dismissals that are not summary dismissals, requires the employee must prove that the dismissal was unfair.

The best course of advice is to seek advice, based on the specific circumstances involved, before taking any action.

Should you require further information regarding this decision, please do not hesitate to contact us.

By Karen Arnold

Director and Business Development Manager

Effective Workplace Solutions

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