Businesses that summarily dismiss employees without adequate reason or due process run the risk of costly litigation, according to Business SA’s senior workplace relations consultant, Vikki Hinton.

Instant dismissal can be applied in a number of cases where serious misconduct involving such offences as theft, fraud and assault has occurred. However, Hinton says that an investigation must be conducted to establish whether, on balance of probabilities, the alleged misconduct occurred.

Investigations must be carried out on the principles of natural justice and must follow the requirements of procedural fairness in accordance with the Fair Work Act 2009. Any decision to summarily dismiss an employee should be made carefully with as much knowledge of the facts as possible.

“Many businesses are not aware of the requirement of the Fair Work Act that a complaint or allegation against an employee must be investigated by the company concerned before a termination can occur,” Hinton told Business Insight.

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“An investigation must establish, on the balance of probabilities, that the serious misconduct has occurred, and that the employee has been given an appropriate right of reply, before any dismissal can occur.”

Hinton said that while offences like theft and fraud fell readily into the category of ‘serious misconduct’, other misdemeanours were not so clear-cut and would be decided on the circumstances involved.

“Many businesses have contracts of employment which state that grounds for instant dismissal include breaches of policy or procedure. However, such breaches are not always grounds for instant dismissal and each circumstance should be assessed on the facts,” she said.

“Generally, the guiding principle for instant dismissal is that it involves conduct that is inconsistent with continued employment.

“While offences such as theft, fraud and other criminal acts can justify instant dismissal, so too can refusing  to follow directions from a supervisor without reason, although fair warning of the consequences is required in such circumstances.

“Instant dismissal is a major decision for any employer and businesses must have the policies and procedures in place to ensure they act appropriately and do not risk subsequent costly litigation by the aggrieved employee in court.

“In circumstances where an employee is alleged to have committed a serious offence which may justify instant dismissal, it is important that the employer act quickly. Failure to act quickly will effectively send the message that the alleged misconduct is not serious and the ability to legally terminate without notice may be lost.”

Business SA offers advice on a variety of workplace issues and can provide an independent and unbiased investigation service if employers do not have the resources required. It can also provide advice and assistance regarding performance management and termination if required.