When to dismiss without notice

When to dismiss without notice - When to dismiss without...

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When to dismiss without notice— recent cases on summary dismissal Lander & Rogers Where an employee engages in conduct that an employer considers not only justifies dismissal but warrants summary dismissal, it is important to consider whether summary dismissal could make the termination harsh, unjust or unreasonable. In recent months, the Fair Work Commission (Commission) has found a number of employers’ decisions to summarily dismiss employees for serious misconduct to be unfair. This has been the case even when there has been a valid reason for termination. This article discusses three recent decisions by the Commission. Two of these cases involve an employer responding to serious misconduct allegations with summary dismissal. The third case is one where an employer opted to terminate an employee with payment in lieu of notice, even though it was satisfied that serious misconduct had occurred. KEY POINTS Three recent cases in the Fair Work Commission have emphasised the need to be very careful when summarily dismissing employees. Summary dismissal must be in response to sufficiently serious and wilful misconduct. To minimise risk, it may be preferable to terminate employees with notice, unless a clear case of serious misconduct has occurred. TREEN V ALLWATER - ADELAIDE SERVICES ALLIANCE 1 Mr Treen, an employee of Allwater, was summarily dismissed for leaving a voicemail on a colleague’s phone calling them a “f– –king scab” during a period of industrial action. Allwater was found to have properly investigated the matter, and no issues of procedural fairness were raised at the hearing.
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However, among other things, Mr Treen argued that his dismissal was unfair because: he had a near unblemished seven year record of service at the company; his age (50) and skill base made his prospects of finding alternative work limited; and Allwater applied an inconsistent disciplinary outcome in this case when compared with similar previous matters.
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  • Summer '17
  • Law, summary dismissal, Mr Waters, Mr Gregory

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