Summary dismissal, Serious Misconduct, Workplace Investigations

Summary dismissal, Serious Misconduct, Workplace Investigations – A recent case at the Fair Work Commission (Trialonas v Steric Solutions Pty Ltd) highlighted the need for employers to understand what Summary Dismissal is, how it applies to Serious Misconduct and the importance of thorough professional workplace investigations.

In this case a worker was summarily dismissed for using abusive language towards his supervisor but then allowed back to work to be dismissed 3 days later. After an initial hearing, an appeal and a rehearing DP Sams found in favour of the applicant and awarded three months compensation in the amount of $12,882.60.

DP Sams stated in his decision;
“In my view, there can be no room to doubt that the reasons for the dismissal were not only ‘capricious’ and ‘fanciful’, but were contradictory (serious safety breaches vis-a-vis ‘does not listen’). Despite these alleged safety breaches being raised in Ms Docherty’s statement; see: para [30] above, the respondent has not provided any evidence or details of the allegations. Moreover, I cannot be satisfied that these issues were the same safety breaches Mr James Docherty had in his mind when he directed Ms Docherty dismiss the applicant on 9 December 2016. There was no evidence to this effect and I am led to a conclusion that these issues were ‘cobbled together’ after the event, when it became clear that Mr James Docherty’s desire to have the applicant gone, without any explanation, would not sustain, even a cursory examination, as to its validity.”

Summary dismissal, Serious Misconduct, Workplace Investigations – Lesson for employers

  • Summary dismissal is used to immediately terminated an employee and have them removed from the workplace.
  • It should not be used as a matter of convenience
  • It should not be used to save paying the employee their notice period
  • It is advisable to conduct a thorough workplace investigation to ensure you have the evidence to support your decision

Summary Dismissal

Summary dismissal is dismissal without notice. It does not require advance notice to the employee and wages are only paid to the time of dismissal.

An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal. The employee still has a right to procedural fairness.

Serious Misconduct

Under the Fair Work Act, an employer can instantly terminate an employee’s employment, where the employee has engaged in ‘serious misconduct’.  In such circumstances, the employer will have to establish that the employee has in fact engaged in serious misconduct; and the employer will still need to follow a certain procedure to afford the employee procedural fairness

The Fair Work Regulations defines ‘serious misconduct’ as:

  1. willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
  2. conduct that causes serious and imminent risk to:
  3. the health or safety of a person; or
  4. the reputation, viability or profitability of the employer’s business.

The Regulations also list the following conduct as being deemed serious misconduct:

  • the employee, in the course of the employee’s employment, engages in theft, fraud or assault;
  • the employee being intoxicated at work;
  • the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

For more information about Summary Dismissal;

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