Summary dismissal: How to know if yours was fair

Summary dismissal is when employment is terminated immediately without notice due to the employee engaging in serious misconduct. The employee isn’t entitled to pay in lieu of notice. They are only paid their wages up until the time when they were dismissed. Given that a summary dismissal is such a harsh measure of discipline, it’s something that most employers only resort to in extreme circumstances and after careful consideration. However, that’s not the case for some employers. Summary dismissal: How to know if yours was fair is compulsory reading so you know your rights

There have been countless examples of unfair dismissal cases brought before the Fair Work Commission (FWC) where an employer has summarily dismissed an employee for unjustified reasons. Or the employer has done so without ensuring the employee is afforded procedural fairness – which is a fundamental right for all Australian workers.

In this article, we discuss when a summary dismissal is justified or not. We outline forms of serious misconduct that can lead to a summary dismissal. We explain when out of hours misconduct can lead to a summary dismissal. Also, what procedural fairness is and everything you need to know to make an unfair dismissal claim.

When is a summary dismissal justified?

A summary dismissal can be fair and reasonable if the employee engaged in serious (or gross) misconduct. The Fair Work Act 2009 lays out the definition of serious misconduct. It’s when an employee willfully acts in a manner that goes against the terms of their employment contract. That is, the misconduct is sufficiently serious to make the continuation of the employment contract impractical.

Serious misconduct can be behaviour that leads to a serious and imminent risk to an individual’s health and safety or to the employer’s business. That is, to its perception among the general public, viability or ability to make a profit.

Examples of serious misconduct that can justify summary dismissal

When it comes to behaviour within the workplace, a summary dismissal may be justified if an employee:

• Is caught stealing, vandalizing property or engaging in fraudulent activity
• Bullies, sexually harasses or assaults another individual
• Is under the influence of alcohol or drugs
• Refuses to comply with a fair and reasonable directive from their employer

While these may be considered fair grounds for serious misconduct and therefore summary dismissal, it may depend on the circumstances.

It must also be noted that summary dismissal can also be justified by repeated instances of misconduct. This could be instances of misconduct that, on their own, would not be sufficiently serious to justify summary dismissal. But considered together as a pattern of repeated misconduct, can warrant a fair summary dismissal.

An important note about summary dismissals in small businesses

Australian employers that employ fewer than 15 employees are bound by the Small Business Fair Dismissal Code (the Code). This provides small businesses with an extra line of defense against unfair dismissal claims.

The code states that a small business can justifiably issue a summary dismissal to an employee if it reasonably believes that the conduct of the employee was sufficiently serious. In the event that an employee makes an unfair dismissal claim, the FWC doesn’t have to consider evidence of whether the serious misconduct occurred. Or if it was sufficiently serious to warrant a summary dismissal.

All the Fair work must do is assess whether the small business possessed a reasonable belief that the conduct was sufficiently serious to necessitate summary dismissal. It doesn’t have to decide if the small business’s belief was correct.

Can a summary dismissal result from out of hours misconduct?

Generally, employers aren’t within their rights to concern themselves with the private lives of their workers. However, depending on the circumstances, it is possible for a summary dismissal to be justified by out of hours serious misconduct.

For this to be the case, the out of hours serious misconduct must meet certain criteria. Namely, it must:

• Have a likely damaging effect upon the employee-employer relationship.
• Undermine the interests of the employer. For instance, damage its reputation with the general public.
• Be contrary to the employee’s duty as an employee.

For more information about summary dismissals arising from out of hours serious misconduct, you can read our comprehensive article on the issue.

Why procedural fairness is essential in summary dismissal cases

Prior to an employee being given a summary dismissal, they must be afforded procedural fairness by their employer. This is a fundamental right that’s provided by Australia’s workplace laws. Procedural fairness, in short, is the when the employee is provided the opportunity to explain their side of the story. Also, when an employer adequately investigates the allegations made against the employee.

Procedural fairness concerns the way in which the employer dealt with the employee’s allegations of serious misconduct prior to deciding to summarily dismiss them. It relates to the way in which the employer came about making that decision, rather than the decision itself.

When it comes to summary dismissals due to serious misconduct, the Fair Work Act 2009 dictates that in order to have provided procedural fairness, an employer must have:

• Adhered to its own established processes for dismissing an employee.
• Made proper enquiries into the circumstances that led to the summary dismissal.  
• Clearly outlined the details of the serious misconduct allegation to the employee.
• Given the employee a fair chance to respond to the allegations. This includes having provided sufficient time to do so.
• Fully taken into account the employee’s response to the allegations.
• When meeting with the employee to discuss their serious misconduct, provided the option to seek advice or have a support person present.
• Provided the employee with written notice of their dismissal on the day of.

Can I make an unfair dismissal claim if I wasn’t provided procedural fairness?

When it comes to unfair dismissal cases involving summary dismissals, the Fair work carefully assesses whether the employee was provided procedural fairness. And if it’s found that they weren’t, this can be cause for the employee’s dismissal to be deemed harsh, unjust or unreasonable.

Such a ruling could be made despite the Fair work finding that the employee’s serious misconduct provided a valid reason for dismissal. It’s therefore important that if you were given a summary dismissal, you carefully consider if you were afforded all the aforementioned rights. If not, you will likely have strong grounds to lodge an unfair dismissal application with the Fair work.

We’ve previously written about the importance of procedural fairness in unfair dismissal cases, which can help you further determine if you were afforded this fundamental right.

I’ve been summarily dismissed – How do I make an unfair dismissal claim?

If you feel that your summary dismissal was unfair, either with respect to the nature of your alleged conduct or having been denied procedural fairness, it’s critical to act fast. That’s because you must lodge an unfair dismissal application within 21 days of being summarily dismissed.

To lodge an application, you must have been employed for at least six months. If you were employed by a business with 15 or fewer employees, you must have been employed for at least 12 months. You can only lodge an application if your earnings were under the high-income threshold, which is currently $162,000. In the alternative a general protection claim can be explored.

You can read more about lodging an unfair dismissal application on our website.

Unfair dismissal claims: Why it’s critical to seek assistance

For many employees, it’s often difficult not only to determine if they were unfairly dismissed. But also, to navigate the many, often complex requirements of submitting an unfair dismissal application. And not least, to know what evidence to gather to ensure your application a success.

Some employees choose to go through the process entirely on their own – even representing themselves at their unfair dismissal hearing with the Fair work. However, this is highly unadvised given the complex nature of Australia’s workplace laws and the many intricate requirements of representing yourself at the Fair work.

Conclusion to: Summary dismissal: How to know if yours was fair

A Whole New Approach can help you achieve success

If you think that your summary dismissal was unfair, A Whole New Approach can help. Note we are not lawyers. Our team has assisted over 16,000 Australian workers lodge unfair dismissal applications with the Fair work.

Our experience dealing with so many cases over the last 20 years means we know how to maximize your chances of receiving compensation. AWNA is proud of its staff and the outcomes we get for our clients. We can help you lodge an application no matter which state or territory you’re in. Want your job back?, need to protect your reputation, casual employee rights, give us a call.

And if you’re worried about cost, we offer a no win, no fee service. Plus, a consultation with us is completely free. So, if you would like to have a no-obligation conversation with us, get in touch on 1800 333 666.

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