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:
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
Katherine (08) 7919 7019
2/46 Chardon St