9.05.2018

You’re fired! Summary Dismissal – Do I still need a process?

Summary dismissal, that is, dismissal without notice, may arise in relation to serious misconduct, and sometimes where misconduct is repeated

Most employers won’t relish the idea of having to fire someone. However, sometimes an employee’s actions (or inactions) may be so serious that the decision to terminate the employee’s employment might not appear to be a difficult one.
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.

If having gone through the process above the employer determines serious misconduct has occurred and that summary dismissal is justified, the “summary” aspect refers to the termination of employment without payment of the employee’s contractual notice period or the ability to work out their notice period. The contractual notice period can be significant, particularly for senior or specialist roles, so as well as the obvious loss of future income, this has substantial repercussions. The sanction of summary dismissal should be applied cautiously.

Ultimately the legal test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred. That includes, at a minimum, the consideration of the factors outlined above.

In summary…

On discovering an apparent incident of serious misconduct don’t be too hasty or jump to conclusions – the matter must be fully investigated and a fair and proper process carried out.

There have been many cases where what appeared, at first blush, to be serious misconduct had a perfectly plausible explanation. If, on the other hand, there is clear evidence of the alleged conduct, the process is likely to be swift and without too much palaver.

If you have any questions about the process to follow, the justification for summary dismissal, or any other aspect of employment law, please give us a call.

Do you need expert legal advice?
Contact the expert team at Hesketh Henry.
Kerry
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

Related Articles / Insights & Opinion

Alert Level 3; Hi-ho, hi-ho, back to work we go?
In Auckland, we’re excited to be moving to Alert Level 3, if only so we can take a break from cooking every single meal! 
21.09.2021 Posted in Business Advice & COVID-19 & Employment
M&A Pricing Mechanics: Completion Accounts vs Locked Box
A critical period in the timeline of any M&A share transaction is the period between signing the Share Sale and Purchase Agreement and completion.
Climate Change and the Construction Industry: Counting down to a national strategy
The Government is getting closer to the publication of a national strategy for responding to climate change.
21.09.2021 Posted in Climate Change & Construction
Formation of Contract: Black Sea Commodities Ltd v Lermarc Agromond Pte Ltd
The English High Court decision in Black Sea Commodities Ltd v Lermarc Agromond Pte Ltd [2021] EWHC 287 highlights the importance of parties to commodities contracts expressly including an arbitration clause in the contract. This is particularly when the contract is formed by email or instant messaging negotiations.
20.09.2021 Posted in Litigation & Dispute Resolution
August 2021 Lockdown – what financial support is available?
The Government is offering various support schemes to help employees and businesses cope with the 2021 COVID-19 Lockdown.  Given the differing eligibility requirements it is easy to become overwhelmed.
20.09.2021 Posted in Business Advice & COVID-19 & Employment
Clarity on Liquidated Damages following Termination
The United Kingdom Supreme Court in Triple Point Technology Inc v PTT Public Company Ltd [2021] UKSC 29 has clarified the operation of liquidated damages clauses in the event of termination.  The dec...
Is your will in draft form?  High Court refuses to exercise its discretionary power to validate a draft will notwithstanding beneficiaries’ consent
The High Court’s recent decision in Re: An application to validate the will of Olive Ruby Piper [2021] NZHC 534 serves as a valuable reminder to make sure that your estate planning documents are...
16.09.2021 Posted in Family & Trust Wills Estates
Send us an enquiry
For expert legal advice, please complete the form below or call us on (09) 375 8700.
  • This field is for validation purposes and should be left unchanged.
-->