When is a summary dismissal permissible?

A summary dismissal without notice or ay in lieu is only justifiable where the employee’s conduct is such that it can be interpreted as a repudiation of his or her obligations as an employee. Here is an extract from a Fair Work Commission decision which explains the concept.

“This was a case of summary dismissal. Summary dismissal is the most severe form of termination of employment. By its nature, summary dismissal indicates and records some very serious wrongdoing. Summary dismissal is implemented without any notice or payment in lieu of a period of notice. A summary dismissal may also remove entitlements to certain service related payments such as accrued long service leave. (In this instance, the applicant was paid all his accumulated leave entitlements.) Summary dismissal should be clearly distinguished from a dismissal with notice or payment for the notice period.

The reason for the summary dismissal of the applicant was directly related to his conduct surrounding and following the 17 March incident. Any consideration as to whether that conduct provided a valid reason for dismissal should logically have regard for the summary nature of the dismissal. In simple terms, what may be a valid reason for a dismissal with notice, may not be a valid reason to dismiss someone summarily.

Any employer should be very cautious about invoking a summary dismissal, as opposed to dismissal with the required notice. In this regard, it is relevant to repeat an extract from the Judgement of Mr Justice Hungerford in the case of Pastrycooks Employees, Biscuit Makers Employee & Flour and Sugar Goods Workers Union (NSW) v. Gartrell White (No 3), (Gartrell White)    Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3), Industrial Commission of NSW, [Hungerford J], 35IR @ page 701:

“The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it.”

The following further extract from the same Judgement is relevant:

“…the test comes down to the question whether the employee’s conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future.”

Much of the recent case law on the question of what particular conduct may justify summary dismissal has developed from a line of authority which, for present purposes, can be conveniently traced back to the case of Laws v. London Chronicle (Indicator Newspapers) Limited.  1 WLR [1959] @ 698. Although this was an English case from 1959, it established the concept that any conduct which is relied upon to provide basis for summary dismissal must “… have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.”  …………………

Further, in this case, it was surprising to find that the employer decided to invoke a summary dismissal, as opposed to dismissal with notice, in respect to an incident after which the applicant had performed further work without any restriction. Although on the afternoon of 17 March, the employer had not had the benefit of examining the CCTV vision, it had a broad understanding of the nature of the incident including the applicant’s role in requesting the second forklift operator to endeavour to “push the fork back onto the dock” 6. In the circumstances, the absence of any immediate suspension or restriction upon the applicant has meant that the employer could not subsequently invoke a summary dismissal of the applicant as opposed to dismissal with notice.7

The circumstances which may provide for summary dismissal as opposed to dismissal with notice, are examined in detail in the often quoted sourcebook, Macken’s Law of Employment  8 and it is particularly relevant to note the following extract from that text where it is stated:

“…no rule of law defines the degree of misconduct which would justify summary dismissal without notice. This is a matter which turns on the facts and circumstances of each case.” 9

In this instance, the misconduct of the applicant which involved his activities during the 17 March incident, and his subsequent responses during the employer’s investigation into that event, does not possess any characteristic of wilful attack against the employment relationship. Upon careful evaluation, the misconduct of the applicant cannot be construed to be of the nature and severity of serious and wilful misconduct that could provide valid reason for summary dismissal as opposed to dismissal with notice.

A proper analysis of all of the evidence involving the misconduct of the applicant in respect to the 17 March incident, and his subsequent responses during the employer’s investigation of that event, has established that there was not a valid reason for the summary dismissal of the applicant. However, a proper evaluation of the misconduct of the applicant has led to the prospect that if the employer had decided to implement dismissal with notice, then valid reason for such a dismissal would have existed.

The applicant’s participation in the 17 March incident could be generously construed to represent the well-meaning but foolhardy endeavours of a diligent employee seeking to keep the wheels of the employer’s business rolling. Unfortunately, the applicant’s subsequent responses to the employer’s investigation, and his on-going assessment of his role in the 17 March incident, have provided basis upon which the employer has understandably lost the necessary trust and confidence to maintain the employment relationship.

The applicant provided what might be described as equivocal responses about important issues such as; (a) his use of a mobile phone whilst driving a forklift; (b) the sequence of the particular events when he attempted to remobilise the first forklift before seeking assistance from the maintenance department; and (c) an assertion that contacting the maintenance department represented a report to the relevant manager.

Further, and most alarmingly, during the employer’s investigation process the applicant failed to appreciate and acknowledge the significant mistakes that he made during the 17 March incident. Regrettably, the applicant has continued to demonstrate that he has failed to grasp the serious misconduct involved in his actions during the 17 March incident for example, he provided the following evidence during re-examination:

“Your evidence as I understand it is that at all times you thought you were doing the right thing? — I think so. I believe so.” 10

Regrettably, this evidence was adduced during questioning from the applicant’s own representative, and it was not qualified by any acknowledgement that even if the action taken during the 17 March incident was considered at that time to be correct and appropriate, upon careful reflection and reconsideration it involved significant mistakes. The approach that the applicant adopted as defence of his actions during the 17 March incident was destined to fail because he engaged in numerous breaches of safe work procedures that can be clearly identified from even a cursory viewing of the CCTV footage. Even if at the time of the 17 March incident, the applicant genuinely believed that he was acting in accordance with established safe work procedures, such a belief could not be sustained following any objective contemplation of the vision provided by the CCTV footage. The failure of the applicant to recognise his mistakes has compounded the misconduct.

Consequently, a proper and thorough analysis of all of the evidence surrounding the misconduct of the applicant during the 17 March incident, and his subsequent responses during the employer’s investigation into that event, has confirmed that the applicant’s actions did not provide valid reason for summary dismissal. However, the misconduct of the applicant during the 17 March incident, combined with his subsequent responses during the employer’s investigation would have provided sound, defensible basis for dismissal with notice.”

The respondent employer was ordered to pay compensation to the applicant of 5 weeks’ remuneration.

Marangon v Queensland Property Investments Pty Limited (2017) FWC 4379 delivered 29 August 2017 per Cambridge C