Summary Dismissal Letter

Summary Dismissal Letter

Disclaimer: please note that a there is a high threshold for proving serious misconduct and summary dismissals. We recommend that employers seek legal or professional advice before terminating an employee summarily. 

When an employee is terminated by reason of serious misconduct, this is referred to as a ‘summary dismissal’. Employees who have been summarily dismissed are not entitled to any notice payment, but must still receive any outstanding wages up to the date of termination, and any Annual and Long Service Leave accruals(as applicable). 

Serious misconduct is defined by Regulation 1.07 of the Fair Work Regulations 2009 as: 
(a)    wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;
(b)    conduct that causes serious and imminent risk to:
         (i)    the health or safety of a person; or
         (ii)    the reputation, viability or profitability of the employer's business;
(c)    engaging in theft, fraud, assault or sexual harassment in the course of the employee's employment;
(d)    being intoxicated at work;
(e)    refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

Employers should note that the threshold for proving that an employee has engaged in serious misconduct is very high. As such, an employee should not be summarily dismissed unless employers are comfortable that they have sufficient evidence to prove that the conduct met the abovementioned criteria. If this is not the case, employers should seek legal advice before proceeding with a summary dismissal. 

The Process

Before finalising a summary dismissal, employers will need to follow the standard disciplinary process – that is, providing the employee with the allegations made against them in writing, allowing them at least 24-48 hours to prepare a response, and notifying them of their right to a support person. 
This letter is the final step of this process, and should not be issued until an employee has been provided with an opportunity to respond.