SERIOUS MISCONDUCT, SUMMARY DISMISSAL & IMMEDIATE TERMINATION
Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of employment and/or human rights law before acting or relying on any of its content.
Summary dismissal refers to the immediate termination of employment. The employee loses the right to a notice period or pay in lieu of notice. This occurs where serious misconduct is said to justify an immediate dismissal. However, an employer must establish that the employee has engaged in serious misconduct and must follow procedures to ensure the employee has been afforded natural justice (also known as due process or natural justice). Otherwise an employee may seek to bring a claim for unfair dismissal.
What is Serious Misconduct?
Regulation 1.07 of the Fair Work Regulations 2009 gives examples which constitute ‘serious misconduct’ which include:
Conduct during the course of employment that amounts to theft, fraud, or assault;
Intoxication at work; or
Refusal to fulfil employee duties as consistent with their contract of employment.
This conduct is ‘serious’ due to:
Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of their contract of employment; and
Conduct causing serious and imminent risk to either health or safety of an individual, or the reputation and profitability of the business.
What about Small Businesses?
The Small Business Fair Dismissal Code, as declared under section 388(1) of the Fair Work Act 2009 (Cth), provides examples of serious misconduct in relation to business employers with fewer than 15 employees to include: theft; fraud; violence and serious breaches of workplace health and safety procedures.
Practically, employers will be required to provide evidence of adherence to the Code where a claim for unfair dismissal is made to the Fair Work Commission. This may include a completed checklist (a tool to assist small business employers comply with the Code); copies of any written warnings; and a statement of termination or signed witness statements: John Pinowin T/A RoseVi.Hair.Face.Body v Domingo  FWAFB 1359.
Steps for Employers
Once it has been established that an employee has engaged in serious misconduct the following procedural steps are typically followed:
Step 1: Arrange a meeting with the employee in question as well as their support person, ensuring there are witnesses present;
Step 2: Present the facts and evidence to the employee relating to the alleged misconduct;
Step 3: Allow the employee to respond to the allegations;
Step 4: Confirm the facts of the misconduct and the employee’s response in writing;
Step 5: If a conclusion is reached that serious misconduct was in fact engaged in by the employee, you may be able to terminate the employee without giving any notice. This decision must be in writing and should give reasons for the termination.
However, procedural fairness is very important and many organisations miss out on important steps or apply a ‘one size fits all’ approach which can be inappropriate for the particular circumstances of a case.
Conduct Not Warranting Summary Dismissal
Examples of conduct which have been found to not warrant summary dismissal includes:
Conduct of a supposed unacceptable phone manner resulting in damaging the business’ relationship with an important client: Michelle de Leon v Spice Temple Pty Ltd  FWA 3497.
Conduct involving improper performance by a university lecturer without issuing a warning: RMIT v Asher  FWAFB 12000.
Conduct of negligence by failure to properly vet a minor’s ID for admittance into a club, without wilful or intentional conduct: John v The Star Pty Ltd  FWC 543.
By Sebastian De Brennan, Barrister, firstname.lastname@example.org