Can an employee face summary dismissal from work without notice?

by The FindLaw Team

Although there are a number of ways in which a contract of employment can come to an end, that still doesn’t take away from the fact that the notice requirements still need to be followed. However with that being said, are their instances where a contract of employment can be terminated without the employer having to fulfil the notice requirements? It’s an interesting question which this piece will explore.

Serious misconduct

The only situation where either notice, or payment in lieu of notice is not required when terminating a contract of employment, is when an employee engages in serious misconduct. The meaning of serious misconduct is contained in Reg. 1.07 of the Fair Work Regulations 2009 (Cth) (the Regulations) and can include:

  • wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
  • conduct that causes serious and imminent risk to the health and safety of another employee; or the reputation, viability or profitability of the employer’s business.

Regulation 1.07(3)(a) also sets out the behaviours that constitute serious misconduct and can include theft, fraud, assault, intoxication, and the refusal of an employee to carry out lawful, and reasonable instructions that is consistent with the contract of employment.

Summary dismissal

If an allegation of serious misconduct arises, an employer may summarily dismiss an employee without notice or payment in lieu of notice, and the employee may be required to leave the workplace immediately. Additionally, there may be circumstances where an employee  who has faced summary dismissal, may also not be afforded the opportunity to collect any personal possessions after the termination of their contract of employment.

Actions by employees that can result in summary dismissal may run the gauntlet of behaviours ranging from illegality, to a breach that strikes at the root of the agreement. However, when determining summary dismissal due to misconduct, all the relevant circumstances should be looked at as was noted in Adami v Maison de Luxe Ltd (1924) CLR 143 at 151, where the High Court said, that the conduct of an employee “...must be not merely a breach, but a radical breach of the relation, and inconsistent with its continuance.”



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