Types of Dismissal

Types of Dismissal

Types of Dismissal

Summary Dismissal
There are essentially two types of dismissal. The first, “Summary” is where the employee’s conduct has been proven on reasonable grounds to be so serious that it justified immediate dismissal.  In such circumstances, it is fair for an employer to dismiss an employee without notice or warning. Serious misconduct includes theft, fraud, violence (including verbal) and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. 

Other Dismissals

In all other cases, the small business employer must give the employee a reason why they are at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Who cannot make an Unfair Dismissal Claim.

The following small business employees are not allowed to make unfair dismissal claims:

  1. Employees who have worked for the business for less than 12 months.
  2. Employees who have worked as irregular casual employees.
  3. Employees who are guaranteed a salary of over $108,000.
  4. Employees who have been dismissed due to business downturn or their position is no longer needed. See redundancy below.

Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning/(s), a statement of termination or signed witness statements.