Summary, or immediate, dismissal is when an employer terminates an employee’s employment without notice or warning. Serious misconduct by the employee is grounds for summary dismissal.
Fair Work Regulations 2009 defines serious misconduct as wilful or deliberate behaviour that is inconsistent with the contract of employment, or conduct that causes serious or imminent risk to the health and safety of a person, business reputation, and the profitability and viability of the employer’s business.
Serious misconduct can include theft, fraud, violence, intoxication, and serious breaches of health and safety procedures. For a dismissal to be deemed fair, an employer should report incidents of theft, violence and fraud to the police, and all breaches of health and safety should be recorded appropriately.
small business dismissal rules
Importantly, employers with fewer than 15 employees (based on a simple headcount, including part-time and casual employees who are employed on a regular and systematic basis) will be covered by special dismissal arrangements which are different to those that apply to larger businesses. The main differences are:
- employees must have worked for the business for 12 months in order to be eligible to make a claim for unfair dismissal
- if a small business employer strictly follows the Small Business Fair Dismissal Code and the dismissal of their employee is not harsh, unjust or unreasonable, then the dismissal will be deemed fair.
employers must prove they followed the Code
A small business employer will be required to provide evidence they followed the Fair Dismissal Code if the employee makes a claim for unfair dismissal to the Fair Work Commission (FWC). This includes evidence that a warning was given (except in cases of summary dismissal). Evidence may include a completed Small Business Fair Dismissal Code checklist, copies of written warning(s), a statement of termination or signed witness statements.
employees can have someone present at meetings
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.