Friday, 13 January 2017

A timely reminder: Summary (instant) dismissal

When can an employer summarily dismiss an employee?

Employers are entitled to dismiss an employee summarily – without notice or warning – if they believe that the employee’s conduct is sufficiently serious to justify instant dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures.

A recent decision in the Fair Work Commission demonstrated that employers must be mindful to carry out the summary dismissal in a timely manner, otherwise the dismissal, otherwise considered fair, may be held to be harsh, unjust or unreasonable.

Nash Wong v Taitung Australia Pty Ltd [2016] FWC 7982

Taitung Foods operate a food supply business and employed Nash Wong as a delivery truck driver for 9 years. The company discovered in February 2016 that several employees, Wong included, had been conducting a criminal enterprise involving adding extra stock to the delivery trucks and then selling the stolen produce for a direct fee. Upon becoming aware of this practice, the company involved the police, who encouraged the company to defer any disciplinary action against the other employees, (including Wong), in order to gather more evidence. Wong was called to a disciplinary meeting in May and summarily dismissed.

After finding that the criminal activity clearly amounted to a valid reason for dismissal, the Commission then assessed other factors surrounding the circumstances of the dismissal. Ultimately, the Commission found that the summary dismissal was unfair and the company should have dismissed Wong with notice.

In so finding, the most critical factor was that the company, with full knowledge of Wong’s serious misconduct, allowed him to continue in his employment for several months, prior to his summary dismissal. Although the police had encouraged the company to keep the employee in his position, the Commission stated that the severity of the misconduct was inconsistent with permitting Wong to remain at work. Therefore, the failure to suspend him from work meant the employer should have dismissed him with notice, rather than summarily.

Lessons for Employers

If an employee’s misconduct is so serious as to justify instant dismissal, the employer must act swiftly, by immediately suspending or terminating that employee, or else an otherwise valid summary dismissal may be construed as unfair. It is also recommended that any allegation of theft, fraud or violence be reported to police.

Please contact us if you need assistance in managing an employee’s dismissal or serious misconduct.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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