How can you fire an employee without notice while ensuring you don’t end up in front of the FWC? Here’s your HR guide to conducting a summary dismissal.
So an employee commits fraud, sexual harassment or steals from the company and it has been determined their misconduct is so serious that the company needs to issue a summary dismissal (i.e. fire them on the spot).
Even though you deem the employee’s conduct so objectionable that you want them out of the company immediately, it’s critical to ensure you meet your legal obligations to avoid landing yourself in legal trouble.
Amy Zhang, Executive Counsel and Team Leader at Harmers Workplace Lawyers, outlines the legal considerations to keep in mind.
When is a summary dismissal necessary?
Summary dismissal should only be used in rare and extreme circumstances – i.e. for the “most serious misconduct that is inconsistent with the continuation of the employment relationship”, says Zhang.
“This could include conduct that causes a risk to health and safety or that damages the reputation, viability or profitability of the business, such as theft, fraud, sexual assault or harassment, intoxication or deliberate refusal to carry out a lawful and reasonable direction of the employer.”
However, the types of behaviour that can lead to summary dismissal aren’t restricted to these examples.
“Outside of serious misconduct, there can be other grounds as well. In an employment contract you can expand the definition and circumstances that would allow an employer to summarily dismiss someone. We’ve also seen instances where an employee is no longer entitled to work in Australia, and that might be a ground for summary dismissal too.”
The legal risks to keep in mind
While summary dismissal might be justified in the circumstances, there are some legal risks that employers should always keep front of mind.
“The most clear example is an unfair dismissal claim,” says Zhang. “If an employee is summarily dismissed and it’s ultimately found that the circumstances weren’t sufficient to warrant this action, an employee could claim back pay as well.”
There could also be a breach of contract, or a general protections or discrimination claim if someone felt they were being dismissed for expressing a workplace right, such as unionising or making a complaint, or because of a protected attribute such as age, gender, religion, sexual orientation or cultural background.
To ensure procedural fairness, an employee should be presented with all the facts, provided with an opportunity to respond, and given the time of day to express why they shouldn’t be dismissed.
It’s also prudent for employers to keep clear and thorough file notes of the circumstances that have transpired, the reason for dismissal and the reason they think summary dismissal is necessary, says Zhang.
“Although summary dismissal effectively means instant dismissal, that doesn’t mean an employee doesn’t have the right to procedural fairness. It just means that there might be different considerations and it might be a faster process.”
Policies are paramount
Before a situation that requires a summary dismissal arises, companies can take pre-emptive steps to protect themselves.
This includes ensuring employees are aware of the types of misconduct that may constitute summary dismissal.
“This is always going to be helpful to employers, particularly if you’re defending an unfair dismissal claim,” says Zhang.
“Having policies that are given to employees, and having them undergo refresher training on those policies, is always a good idea.”
“Although summary dismissal effectively means instant dismissal, that doesn’t mean an employee doesn’t have the right to procedural fairness. – Amy Zhang, Executive Counsel and Team Leader at Harmers Workplace Lawyers
Ensuring employees are kept abreast of other company policies, such as behavioural expectations, sexual harassment policy and anti-bullying procedures, could also help to justify a company’s decision to summarily dismiss an employee.
Beyond policies, it’s also important to ensure you’re facilitating adequate training for employees, and offering refresher courses and easy access to training materials for future reference.
Jeff Weekly v Essential Energy  illustrates the importance of doing so.
The judge considered that the employee was trained just a few days prior to committing a serious safety breach, and this factored into a ruling in favour of the employer’s decision to dismiss the employee.
“When defending an unfair dismissal claim, it’s always helpful for employers to have evidence that employees knew what was expected of them, and that they were aware of the policies and getting refresher training on the level of expectation,” says Zhang.
“A workplace safety or sexual harassment policy should have clauses about what is [considered to be] unacceptable behaviour and [outline] that committing an offence could constitute serious misconduct and result in dismissal, including summary dismissal.”
If you need to summarily dismiss an employee, be sure to tread carefully. There are a number of legal risks involved.
Book in for AHRI’s short course, Introduction to HR Law, on 17 May to refresh your team’s employment law knowledge.
Notifying the employee
If an employee needs to be let go without notice, the employer should make sure to document every step of the process.
“Good file notes are going to be the most important factor that will help employers defend the summary dismissal on a merits front, as well as a procedural fairness front,” says Zhang.
“The employer should gather as much evidence as they can and have a comprehensive record. Anyone who may be a potential witness, or who was involved in the termination process, should also keep good records.”
Priority should also be placed on informing the employee in a face-to-face setting.
“To the extent possible, the process should always be face to face or should replicate face-to-face processes as much as possible. When everyone’s working from home, it’s not always possible to have meetings in person, but in that situation, the dismissal should be done over a video conferencing call and then it should be followed up in writing.”
The FWC decision of Petersen v Allpet Products highlights why.
In this case, the judge noted that the employee’s position was terminated by email, and no phone call or meeting took place.
“There are a few Fair Work Commission cases which ruled on procedural defects in terminations where an employer dismissed someone quite harshly by doing it over the phone or by text message.
“To defend an unfair dismissal claim, it’s really important to do all that you can to avoid any findings or comments about procedural defects or unfairness.”
“Good file notes of the reasons and the process undertaken is going to be the most important factor that will help employers defend the summary dismissal.” – Amy Zhang, Executive Counsel and Team Leader at Harmers Workplace Lawyers
It’s also advisable to suggest the employee bring a support person to the meeting, says Zhang.
“As a matter of procedural fairness, and if the circumstances allow, the employer should certainly encourage, or give the opportunity for, the employee to bring a support person. That could even be a colleague when it happens very quickly,” she says.
Read HRM’s guide on how to manage support people in meetings here.
In most situations, the employee’s manager, together with HR, would be best-placed to run a summary dismissal meeting, but it’s important to determine who to involve on a case-by-case basis.
“Exactly who attends the meeting will depend on the structure of the organisation and who knows the most information about the situation,” says Zhang. “If the relationship between the employee and their manager has deteriorated, for example, then it might not be appropriate for the manager to be involved. A judgment call needs to be made as to who would be best to deliver the news sensitively and appropriately.
“But as a matter of best practice, it’s always better to have more than one person in the room to do the termination, so there’s someone else present to take good notes and witness what’s happened in case it leads to litigation.”
The employer should also provide a letter to the employee, but there’s no hard and fast rule about when this should take place.
“Under the Fair Work Act, there is a requirement to provide notice of termination in writing. So that is quite an important step… The letter should be provided to the employee, whether that’s during or at the end of the meeting, or by courier afterwards.
“There are some cases and legislative doubts about the effectiveness of doing it by email because it could give rise to questions about whether the employee received it, so it’s always better to do it by hand or by courier. That way, it’s clear that it’s been delivered in writing.”
These might seem like small process-based issues, but they’re critical in ensuring a summary dismissal is conducted legally and fairly. After all, it could protect your company from an unfair dismissal claim.
Read HRM’s article about an employee who was fired via email and then made an unfair dismissal claim.