When can I dismiss an employee without notice?
The process of dismissing an employee usually includes several steps such as:
investigating behaviour,
raising concerns with an employee and,
giving notice.
However, there are some limited circumstances in which not all of these requirements are needed.
An example of such a case is when an employee’s behaviour is so serious that their employer is not required to give the employee notice. This is known as “summary dismissal” and may be appropriate when an employee has behaved in a way that amounts to serious misconduct.
Serious misconduct is conduct which has destroyed the trust and confidence in an employment relationship.
Examples of serious misconduct may include (but are not limited to):
theft,
violence,
use of illegal substances,
dishonesty,
bullying and,
workplace harassment.
A dismissal without notice is contrasted with a dismissal with notice.
For example compare an employee who is to be dismissed without notice for serious misconduct for fraud with an employee who is to be dismissed after another finding of misconduct following a final warning for a breach of timekeeping.
Dismissing an employee “without notice” merely means that an employee can be forced to leave the workplace instead of being given their notice period, and the employer is able to cease paying the employee from the date of dismissal as there is no notice period that has to be paid.
Not having to give notice does not mean that an employer can dismiss an employee immediately when an issue arises.
It is important not to be misled by the term “without notice”.
Employment agreements generally include a notice period. This includes the notice period if an employee chooses to leave their job, and/or if they are dismissed from the job.
Employers are always required to follow a fair process. Whether there has been serious misconduct or not an employer is required to undertake a number of steps before dismissing an employee.
These steps include:
1. Raising any concerns with the employee along with the possibility of dismissal if the concerns are correct;
2. Investigating claims against the employee before making a decision on the facts;
3. Providing the employee with relevant material so they can prepare their response;
4. Advising the employee of their right to have a support person attend meetings and assist with their response;
5. Allowing the employee a reasonable opportunity to respond to the allegations;
6. Considering all the facts, including the response from the employee;
7. Advising the employee of the decision on the allegations, the level of misconduct found, and any preliminary view as to the penalty outcome;
8. Allowing the employee to provide feedback on the preliminary proposed penalty and genuinely considering that feedback; and
9. Advising the employee of the penalty outcome.
Failing to undertake these steps is a breach of an employer’s good faith obligations. This can lead to serious and expensive consequences for the employer.
Dismissing an employee without notice can be used when the behaviour amounts to serious misconduct that justifies a dismissal without having to give the notice period. However, it is important that employers remain aware of their overall obligations during the dismissal process.
If you are confused about your obligations, it pays to seek advice from a professional.
Source: Rainey Collins Employment Issues 21.8.24
