Employers are often forced to deal with employees who engage in various forms of misconduct. Navigating and dealing with these situations is a delicate process. There are a range of considerations that an employer must be aware of when considering dismissing employees, particularly when dismissing them without notice. Dealing with serious misconduct by correctly following a procedurally fair process can allow employers to summarily dismiss an employee. However, failing to take the necessary precautions may result in a claim against the employer.

What is Summary Dismissal?

Summary dismissal involves the immediate termination of employment without any notice or payment in lieu (immediate dismissal or instant dismissal). Summary dismissal is the most serious form of dismissal and is a lawful response to conduct that amounts to serious misconduct.

What are the grounds for Summary Dismissal?

When an employee engages in misconduct, it can have severe consequences for the employer and the business. The law recognises this and allows employers to immediately terminate employment in cases of serious misconduct. Conduct that amounts to serious misconduct is outlined in the Fair Work Regulations 2009 (the Regulations) Regulation 1.07. Serious misconduct includes (but is not limited to) the following:

  • Willful 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 or safety of another person, or the reputation, viability or profitability of the employer’s business;
  • theft, fraud, assault or sexual harassment in the course of employment;
  • intoxicated at work; and
  • refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s employment contract.

Employers must take care when classifying misconduct as serious misconduct. It may be necessary to conduct an investigation prior to establishing whether the employee has engaged in misconduct and if so, whether that misconduct can be classified as serious misconduct. This investigation may be conducted by internal management, HR staff or in-house counsel, or by an external person, including a specialist consultant or a lawyer. What is most important is to choose someone who has the requisite skills, who will be fair and impartial and who will be perceived by all participants to be free of bias. While the investigation is underway, the employer may wish to stand the employee down, which would usually be with pay, unless the employment contract or industrial instrument allows for stand down without pay.

When is Summary Dismissal unlawful?

summary dismissal unlawful
When is Summary Dismissal unlawful?

Employers must also be careful when taking action to effect a summary dismissal. Where an employee is covered by the unfair dismissal regime under the Fair Work Act, it is crucial that employers ensure the summary dismissal would not be considered harsh, unjust or unreasonable by the Fair Work Commission (the Commission). The factors that the Commission will consider relevantly include:

  • Whether there was a valid reason for the dismissal;
  • Whether the employee was notified of that reason;
  • Whether the employee was given an opportunity to respond to the allegations;
  • Any unreasonable refusal by the employer to allow the person to have a support person present during discussions related to the dismissal;
  • The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
  • The degree to which the absence of dedicated human resource management specialists in the business would be likely to impact on the procedures followed in effecting the dismissal.

If an employer cannot prove on the balance of probabilities that summary dismissal was justified based on the above considerations, the employer may be liable to the employee for an unfair dismissal claim.

Small businesses and Summary Dismissal

There are different rules that apply to small businesses when dismissing an employee. A small business consists of fewer than 15 employees.

Small businesses will be more strongly protected against a claim for unfair dismissal where the employer follows the Small Business Fair Dismissal Code.

Summary Dismissal case: White v Wise Guise Pty Ltd [2024] FWC 443

The unfair dismissal regime also applies to some casual employees who work on a regular and systematic basis. The case of White v Wise Guise Pty Ltd [2024] FWC 443 explored a number of the factors within the Fair Work Act to determine whether the summary dismissal of a casual employee was considered harsh, unjust or unreasonable.

Ms Ebony White was employed by Wise Guise Pty Ltd for a period of approximately two years between 2021 and 2023.

On 6 August 2023, due to illness, Ms White advised her employer that she was unable to attend her shift and said that she would seek a replacement. The Respondent subsequently dismissed the Applicant via text message that same day.

The Commission was satisfied that Ms White was a regular and systematic casual employee who was protected by the unfair dismissal regime.

The Commission further noted that the Small Business Fair Dismissal Code did apply and there was no evidence to suggest that Ms White “engaged in misconduct such that her summary dismissal would have been consistent” with the Code.

The Commission then moved to assess the harshness of the dismissal under section 387 of the Fair Work Act in accordance with the following criteria:

Was there a valid reason for the Summary Dismissal?

The Commission outlined that a valid reason would be “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”. Additionally, where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

The Commission identified Ms White’s failure to attend her shift as a possible valid reason for dismissal. However, it was noted that Ms White called her employer with a genuine query relating to her shift and was verbally abused as a result. The Commission said that Ms White was understandably upset and told this to her employer with an offer to find a replacement for the shift, which weighed in favour of a finding of unfair dismissal.

Was the employee notified of the valid reason and given an opportunity to respond?

As the Commission found that there was no valid reason for the dismissal, they did not consider whether Ms White was notified of the decision or whether Ms White was given the opportunity to respond.

This consideration might normally involve an assessment as to whether the employee was provided an opportunity to meet with their employer to discuss any circumstances surrounding any allegations in an open and inviting environment.

Did the employer unreasonably refuse to allow the employee to have a support person present to assist at discussions relating to the dismissal?

The Commission found that the employer did not unreasonably refuse a support person but stated that the reason for this was because the “dismissal was devoid of any process so there was no opportunity to even consider securing a support person”.

Employees must be given an adequate amount of time to find a support person to attend these meetings. Circumstances where employees are notified that they may have a support person present for a meeting taking place on short notice may be considered as a factor to support a finding for unfair dismissal.

Size of the employer’s business

The Commission acknowledged that while small businesses are “different in nature both organisationally and operationally”, the dismissal procedures cannot be “devoid of any fairness” and that “no employer should ever consider that [its size or lack of human resources capabilities] could be used as a shield behind which to hide when they had engaged in conduct which was improper, belligerent and bullying”.
For small businesses, the above extract highlights the importance of following the procedures outlined in the Small Business Fair Dismissal Code.

Any other relevant matters

The Commission considered the severe lack of procedural fairness in the dismissal process as a significant factor that weighs in favour of a finding of unfair dismissal. The employer failed to follow any of the above considerations and led the Commission to a finding that the dismissal was unfair.


If there is no valid reason for a dismissal, or the dismissal process is procedurally unfair, employees covered by the unfair dismissal regime will have a sound basis to assert the dismissal was harsh, unjust and/or unreasonable, which may cause them to file a claim against the employer. Employers should only summarily dismiss an employee if they are sure that serious misconduct has occurred and it is best practice (and in many cases mandatory) to adopt a procedurally-fair approach to the dismissal of an employee.

For further information or to discuss any of your employment needs, please reach out to Amy Sydney and the MV Law Employment Team on (02) 6279 4444 or reception@mvlaw.com.au.

Amy Sydney, Special Counsel
Employment Law
MV Law Canberra
ph. (02) 6279 4444