Summary dismissal checker

Confirm before deciding

• Confirm the facts have been properly investigated: records checked and relevant people spoken to.
• Confirm the employee has been told the specific allegation, in enough detail to answer it, and that you have heard their response.
• Hold a meeting to hear the employee’s response, and let them bring a support person.
• Check whether a medical condition, medication, disability or personal crisis could explain the conduct.
• Count your employees on the date of dismissal (fewer than 15, including associated entities and regular casuals, is a small business). It changes the test that applies and the minimum employment period.

Also consider

• If you need them out of the workplace while you finish the process, you can usually direct them not to attend on full pay. That keeps every option open.
• For theft, fraud, assault, sexual harassment, intoxication or refusing an instruction, the employee can argue that in the circumstances the conduct did not make it unreasonable to keep them employed during a notice period (reg 1.07(3)).

Next steps

• Close the points listed, then run this check again.
• Put the allegation in writing and invite a response (a show cause letter).
• Until then, consider directing the employee not to attend work on full pay.

Whatever the answer

• Summary dismissal removes the obligation to give notice (s 123(1)(b)). Wages owing and unused annual leave (with leave loading where it would have been paid) must still be paid.
• Procedural fairness still applies: tell the employee the specific allegation and genuinely consider their response before you decide (s 387(b)–(c)). Do not refuse a support person.
• An employee who has served the minimum employment period (6 months, or 12 months with a small business employer) and is covered by an award or agreement, or earns under the high income threshold, can apply for an unfair dismissal remedy within 21 days after the dismissal takes effect.