We often get asked if employers can ‘instantly dismiss’ or ‘summarily dismiss’ their employees who are behaving badly. In short, how bad does conduct have to be to summarily dismiss an employee?
Fair Work Australia defines serious misconduct as, “When an employee:
- causes serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business or
- deliberately behaves in a way that’s inconsistent with continuing their employment.
Some examples of serious misconduct include theft, fraud, assault, being drunk at work, refusing to carry out work duties.”
Seems straightforward, right? Not when you consider some of the recent cases of summary dismissal that have gone through unfair dismissal applications.
For example, the recent case where an employee posted “How much of the bosses c-ck did you suck to get where you are?” After colleagues reported the post to management, the employee was dismissed later that day. The commissioner found that the decision was unfair for a few reasons; the employee was not given an opportunity to explain his behaviour, or respond to the dismissal decision before it was made final; the post was not specifically directed at the business or its employees; there was no evidence of a social media policy being provided to the employee; and, that similar language had been used by others in the workplace. The decision was found to be unfair and the employee was awarded $6,238 in compensation.
Another recent case where an employee was summarily dismissed after he told his manager to “get f-cked” was overturned because the Commission found that it did not warrant summary dismissal. It found that that swearing and profane language was accepted and tolerated in the workplace. The employee was not given a chance to respond to the allegations, offered a support person, nor any advance notice of the matters to be discussed. The decision was found to be unfair and the employee was awarded $27,787 in compensation.
The Fair Work Commission will always judge whether a dismissal is unfair based on whether the decision was harsh, unjust or unreasonable, so it is important to consider that when making a decision to summarily dismiss an employee.
- Summary dismissal must be in response to sufficiently serious and willful misconduct.
- To minimise risk, it sometimes helps to terminate employees with notice, unless a very clear case of serious misconduct has occurred.
Always make the decision to summarily dismiss with some degree of caution as it’s a decision that is often held up to scrutiny. Ask yourself if the decision will pass the harsh, unjust or unreasonable test as set out by the Fair Work Commission and consider whether there is another disciplinary option instead of summary dismissal.
For assistance with disciplinary procedures in your workplace, feel free to give us a call at HR Gurus on 1300 959 560, where one of our straight-talking HR experts are able to assist.
Written by resident HR Guru Jessy Warn