Instant dismissal, also called summary dismissal, permits an employer to sack an employee immediately only if the employee engages in sufficiently serious misconduct.
Summary 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.
The Fair Work Act 2009 provides that employees cannot be terminated in circumstances that are harsh, unjust and unreasonable. A dismissal may not be considered harsh unjust and unreasonable if an employee has engaged in misconduct sufficiently serious to justify instant dismissal.
So exactly what kinds of conduct are sufficiently serious to justify instant dismissal?
Misconduct justifying instant dismissal is often referred to as serious and willful misconduct.
The law does not provide an exact definition describing the kinds of misconduct that will justify being instantly sacked. Usually, it's conduct that damages the relationship of trust between the employer and employee. It's 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.
The conduct may include theft, dishonesty, intentional wrongdoing or refusing to obey a lawful and reasonable order. Other situations that have been held serious enough to justify instant dismissal include bribery, drunkenness, criminal offences conducted at work, insulting language, drunkenness, serious neglect and serious incompetence.
Whether any of this type of conduct justifies instant dismissal depends on the degree of misconduct and all the circumstances of each individual case.
Significant breaches of work health and safety procedures will also be serious enough to warrant being instantly dismissed.
The Small Business Fair Dismissal Code provides advice for small business employers (less than 15 employees) on compliance with the unfair dismissal laws in the Fair Work Act 2009. In relation to instant dismissal the code relevantly provides that it's fair for an employer to dismiss an employee:
"when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal."
It goes on to provide examples of misconduct such as theft, fraud, violence and serious breaches of occupational health and safety procedures. The Code provides advice on reporting the theft, fraud or violence to the police however this is not an essential element to finding an instant dismissal fair.
If you've been dismissed instantly for misconduct that you do not believe is serious enough to warrant instant dismissal, then you may wish to consider challenging this decision by lodging a claim for unfair dismissal. The Commission will consider the facts and circumstances of each case to determine whether or not the dismissal is considered harsh, unjust and unreasonable.
Are there time limits to act on unfair dismissal?
Yes. You have 21 days from the date of termination. Visit our employment page for further information on "Unfair Dismissal".
Find this article interesting of helpful?
You might also like to read: