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