Facing a sudden and immediate dismissal from your job can be a shock. In some cases, it can be known as summary dismissal. This is the case when an employer fires an employee instantly, without any notice period, because of alleged serious misconduct. If you’ve been summarily dismissed, it’s important to understand your rights, as this type of dismissal is a severe measure that can have major consequences.
While employers only resort to summary dismissal in serious situations, it’s not always handled fairly. Countless cases have been brought before the Fair Work Commission (FWC) where an employee was summarily dismissed for unjustified reasons or without being given procedural fairness. I have personally seen hundreds of these cases over the years, representing employees at Fair Work. Every case is different, but what is the same is the stress it takes on the employee who has gone through it.
A summary dismissal can be considered fair and reasonable if you have engaged in serious misconduct. The Fair Work Act 2009 defines this as a situation where an employee’s actions are so serious that they make it impractical for the employment contract to continue. These actions could create a serious and immediate risk to someone’s health or safety, or to the employer’s business, its reputation, or its profitability.
In the workplace, here are some common examples of serious misconduct that may justify a summary dismissal:
Although the top 3 points may seem like reasonable justifications for dismissal, the employer still has to prove them. Unfortunately, I have seen cases where this has been justified and others where it has been completely fabricated. Fair and reasonable directives are not always straightforward. It’s also essential to note that even if an individual act isn’t severe enough on its own, a pattern of repeated misconduct could, in some cases, warrant a fair summary dismissal. Employers are also required to follow specific guidelines in this process, so even if the employee was, for example, actually guilty of theft, if the procedural fairness process was not followed, they may still be eligible for an unfair dismissal claim.
Generally, what you do in your private life is your own business, and employers have no right to interfere. However, in certain circumstances, your out-of-hours conduct can be grounds for a summary dismissal. This is typically the case only if your behaviour:
Before an employer can issue a summary dismissal, they must follow a process known as procedural fairness. This is a right for all Australian employees. Put simply, procedural fairness requires the employer to provide you with an opportunity to present your perspective and must conduct a thorough investigation into the allegations made against you.
According to the Fair Work Act, an employer must do the following to ensure they are providing procedural fairness:
If you were summarily dismissed and your employer failed to provide you with any of these rights, you may have grounds for an unfair dismissal claim, even if your alleged misconduct was a valid reason for dismissal.
If you feel your dismissal was unjust, whether due to the nature of the alleged misconduct or a lack of procedural fairness, you must act quickly. You only have 21 days from the date of your dismissal to lodge an application with the FWC. As these types of claims can be quite complicated, we do recommend that you consider engaging a workplace representative.
To be eligible to lodge a claim, you generally must have been employed for at least six months. If you worked for a small business (15 or fewer employees), the minimum period is 12 months. Your annual earnings must also be below the high-income threshold, which is currently $183,100, unless you are covered by an award or enterprise agreement.
The process of making an unfair dismissal claim can be complex. You need to understand the requirements, gather the right evidence, and, in some cases, represent yourself at a hearing. While it’s possible to go it alone, it’s often best to seek professional guidance given the complexities of workplace law.
Read More: Top Reasons why you should file an unfair dismissal claim
Our team at Australian Workplace Discrimination Representatives can assist you if you feel that your summary dismissal was unfair. Although we are not lawyers, we have assisted thousands of Australian workers with their unfair dismissal applications over the past two decades. We understand what it takes to maximise your chances for success. We also have no conflicts, as we only represent employees. We do not work with employers.
We offer a free, no-obligation consultation to discuss your situation. We also operate on a no win, no fee basis, so you don’t have to worry about upfront costs. To find out how we can help, give us a call at 1800 333 666.
