Summary dismissal can have serious consequences for an employee’s personal circumstances and their business reputation. Whether your employee’s misconduct is sufficiently serious to justify summary dismissal can be a fraught question. Responding to an unfair dismissal application will invite particularly close scrutiny of your policies and procedures.

Some recent decisions in the Fair Work Commission highlight key issues that you may face in opting to summarily dismiss an employee.

Misconduct by employee

In Sharma v Teleperformance Australia (t/as Teleperformance Australia) [2018] FWC 4402, an employee was dismissed for allegedly falsifying a customer’s email in a work database, despite their denials to the contrary. The Commission held that this wasn’t a valid reason for a typical dismissal, let alone summary dismissal. The employer failed to establish that the employee made more than an innocent error and hadn’t taken steps to ensure employees understood the possible consequence of such errors. This decision demonstrates that the alleged misconduct of an employee must go beyond a mere failure to properly render services.

Where employees were summarily dismissed for breaching important safety policies, employers have found more success. In both Weekley v Essential Energy [2018] FWC 1448 and Rust v Farstad Shipping (Indian Pacific) Pty Ltd (t/as Farstad) [2018] FWC 2676, policies directed toward a serious possibility of harm to employees or others were essential to a finding that serious misconduct had occurred, and that summary dismissal was justified. The Commission also focused on the importance of ensuring employees are properly trained and understand the ramifications for breach of such a policy. In Weekley, the Commission relied on the fact that the employee had been retrained in that policy mere days before the relevant misconduct.

Dismissal procedures crucial

Two recent decisions demonstrate that failure to comply with the notice procedure may transform a standard dismissal into a summary one, raising more issues for the employer. In Leon v Bernini Stone & Tiles [2018] FWC 3780, the employer’s lack of familiarity with dismissal and the necessary features that justify it contributed to their failure to pay an employee in lieu of notice in a timely fashion, and led to Beaumont DP’s finding that the decision was ‘disproportionate in all the circumstances’.

In Knutson v Chesson Pty Ltd (t/as Pay Per Click), an employer deliberately refused to pay out personal leave or payment in lieu. Commissioner Cambridge deemed this procedure was both ‘unnecessarily callous’ and ‘plainly unjust’.

Tips for employers contemplating summary dismissal

  • Ensure your relevant policies are up-to-date and regularly communicated to staff.
  • Review the scope and significance of impugned employee obligations when canvassing disciplinary options.
  • A failure to exercise caution and care when applying termination procedures can be costly in defending an unfair dismissal action.

Elected to dismiss your employee without notice isn’t a decision that should be made lightly. Although the Fair Work Commission will assess a case according to its individual facts and circumstances, exercising prudence and diligence will always go a long way to avoiding costly unfair dismissal applications.

Workplace Complaints Tracker aligns your dispute to relevant federal case law, fast tracking you to a remedy. Backed by the powerful Westlaw AU platform, access everything you need within a few clicks for a strong understanding of the Fair Work Commission’s approach to the dispute at hand. To learn more or request a free trial, visit the website.

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