{"id":57,"date":"2018-10-16T14:00:00","date_gmt":"2018-10-16T13:00:00","guid":{"rendered":"https:\/\/hub.findingsimple.com\/au\/summary-dismissal-when-is-it-justified\/"},"modified":"2022-08-03T16:04:01","modified_gmt":"2022-08-03T05:04:01","slug":"summary-dismissal-when-is-it-justified","status":"publish","type":"post","link":"https:\/\/insight.thomsonreuters.com.au\/legal\/posts\/summary-dismissal-when-is-it-justified","title":{"rendered":"Summary Dismissal: When is it Justified?"},"content":{"rendered":"

Summary dismissal can have serious consequences for an employee\u2019s personal circumstances and their business reputation. Whether your employee\u2019s 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.<\/p>\n

Some recent decisions in the Fair Work Commission highlight key issues that you may face in opting to summarily dismiss an employee.<\/p>\n

Misconduct by employee<\/strong><\/span><\/p>\n

In Sharma v Teleperformance Australia (t\/as Teleperformance Australia)<\/em> [2018] FWC 4402<\/a>, an employee was dismissed for allegedly falsifying a customer\u2019s email in a work database, despite their denials to the contrary. The Commission held that this wasn\u2019t 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\u2019t 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.<\/p>\n

Where employees were summarily dismissed for breaching important safety policies, employers have found more success. In both Weekley v Essential Energy<\/em> [2018] FWC 1448<\/a> and Rust v Farstad Shipping (Indian Pacific) Pty Ltd (t\/as Farstad)<\/em> [2018] FWC 2676<\/a>, 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<\/em><\/a>, the Commission relied on the fact that the employee had been retrained in that policy mere days before the relevant misconduct.<\/p>\n

Dismissal procedures crucial<\/strong><\/span><\/p>\n

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<\/em> [2018] FWC 3780<\/a>, the employer\u2019s 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\u2019s finding that the decision was \u2018disproportionate in all the circumstances\u2019.<\/p>\n

In Knutson v Chesson Pty Ltd (t\/as Pay Per Click)<\/em><\/a>, an employer deliberately refused to pay out personal leave or payment in lieu. Commissioner Cambridge deemed this procedure was both \u2018unnecessarily callous\u2019 and \u2018plainly unjust\u2019.<\/p>\n

Tips for employers contemplating summary dismissal<\/strong><\/span><\/p>\n