Can you simply channel your inner Donald Trump (or Arnold Schwarzenegger for that matter) and in the heat of the moment say “you’re fired”? No matter how good that may have felt for Donald, the answer is no. Like every other aspect of employment law, a lawful process must be followed, even for very serious behaviour where you are ‘certain’ that the conduct occurred.
What conduct are we talking about?
Summary dismissal, that is, dismissal without notice, may arise in relation to serious misconduct, and sometimes where misconduct is repeated. While some employment agreements or policies specify behaviour amounting to serious misconduct, this is not determinative. The focus is on whether, as a result of the conduct, the employer has lost trust and confidence in the employee. Usually this requires deliberate conduct of such gravity that an employer can swiftly conclude that its trust and confidence in the employee was destroyed.
What constitutes serious misconduct will depend on the nature of the business to some extent, but certain behaviours, for example physical or sexual assault, acts or omissions seriously affecting health and safety (particularly in a safety sensitive workplace) theft or fraud, would likely reach the threshold.
What process must be followed?
While some incidents might be so flagrant or reckless and easily evidenced (for example by security footage) that they appear to justify termination on the spot, it is important that the alleged behaviour is properly investigated and a lawful process is carried out.
As with any other disciplinary investigation, the employer must follow a fair and reasonable process:
- Consider whether suspension is lawful and appropriate (see our article here).
Investigate the allegations including putting the allegations of serious misconduct (or repeated misconduct) and all information to employee, provide employee with opportunity for a representative and/or support person to be present, and advise of possible sanctions.
Provide employee with reasonable opportunity to respond to allegations.
Consider any feedback from employee, investigate further if required and reach a decision on whether serious misconduct has occurred. Remember that the evidence in support of the allegations must be as convincing in its nature as the charges are grave – i.e. the more serious the allegations, the stronger the evidence needs to be.
Advise employee of proposed sanctions and put this to the employee to provide feedback on proposed sanctions.
Consider any feedback from the employee on the proposed sanctions.
Reach a decision on the sanction and implement.