Underperforming, disruptive, or problematic employees are one of the most difficult things for small businesses to deal with. These employees can significantly impact on a businesses operations. Employers need to remove such employees as quickly as possible to limit their negative impacts on the business. Often businesses want to fire problematic employees immediately without any warning or notice. This is summary dismissal. Read below to learn more about summary dismissal and when it is justified.
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Meaning of Summary Dismissal
According to the Fair Work Act 2009 (Cth) dismissal is where an employer terminates someone’s employment or forces an employee to resign. Summary dismissal is a dismissal which takes effect immediately without any notice or warning. Generally employers need to follow a process before dismissing an employee. This includes giving the employee formal warning that their employment may be terminated. This gives the employee an opportunity to improve in the areas which are of concern to the employee. Employer also usually need to give formal written notice to the employee of termination. A notice period will apply with employment ending at the end of the notice period. Summary dismissal is termination of an employee without providing such warning or notice.
When Can Employees Be Summarily Dismissed?
Making the decision to summarily dismiss an employee is serious. This decision will have significant impacts on the employee. Because the employee doesn’t receive notice or warning of dismissal, they won’t have a chance to find another job before employment ends. The circumstances where employees can be summarily dismissed are strictly limited by law to help protect employees.
Generally summary dismissal is only available if an employee has committed serious misconduct which justifies immediate termination. Some examples of misconduct which might justify summary dismissal include:
- theft;
- fraud;
- assault;
- intoxication at work;
- causing imminent and serious risk to a person’s health or safety; and
- refusing to follow lawful and reasonable directions.
However, such conduct does not necessarily automatically justify summary dismissal. To justify immediately terminating an employee, the conduct also needs to be serious enough that it is unreasonable for employment to continue.
Whether summary dismissal is justified depends on the context of the behaviour and the specific terms of the employment contract. Dismissed employees can apply to the Fair Work Commission and argue that their termination was unfair. This is unfair dismissal. Summarily dismissing an employee without proper justification is a form of unfair dismissal. Serious consequences can apply to business that unfairly dismiss employees. For example, the Fair Work Commission can order the business to pay compensation to the employee, reinstate the employee, or both.
Because of the serious consequences that business can face for unfairly dismissing employees, it is important to ensure that summary dismissal is justified. Justification of summary dismissal can be complicated. Whether it is justifiable will depend on the employees behaviour, the context, and the specific terms of their employment contract. Consequently, it is a good idea to get advice from an employment lawyer before summarily dismiss an employee.
Conclusion
Summary dimsissal is one of the most serious actions an employer can take against poorly performing, disruptive, or difficult employees. It involves immediately terminating an employee without any warning or notice. However, summary dismissal is only justified in certain circumstances. Summarily dismissing an employee when it is not justified could be unfair dismissal and result in significant costs for the employer. By following this guide, you can gain a better understanding of when summary dismissal is justified. However, if you are thinking of terminating an employee without warning or notice, it’s always a good idea to consult an employment lawyer to help avoid any unintended consequences for your business.
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