Donald Trump, in his former career as a reality TV star, was known for the catchphrase “You’re fired!“, which was regularly used to hand down a summary execution of a wannabe Donald Trump or a hapless celebrity. But in Australia, at least, “You’re fired“ really does only work as a catchphrase.

For instance, all of the following examples are similar to recent cases before the Fair Work Commission, in which an employer had summarily dismissed an employee for serious misconduct.  Can you guess which the Fair Work Commission found that the offending conduct did constitute serious misconduct, and the employee should therefore not have been fired without warning?

1. An employee who performed burnouts in the business’ driveway, intimidated a customer, and made “rude and aggressive gestures” towards the workplace’s security cameras;
2. An employee who verbally abused a colleague on the phone, because she had dared to call him while he was on a rostered day off;
3. An employee who left a voicemail containing “colourful” language on a colleague’s phone;
4. An employee – also a competitive rifle shooter – who attended work with a high-powered weapon and was showing it off to colleagues in the workplace’’s car park, which led to the police being called; or
5. An employee who was a bouncer who allowed an underage girl to enter a casino, having only briefly inspected her Learner Driver’s Licence?

The answer is only the first two cases. In the last three, the Commission found that the employer had overreacted, and that summary dismissal was not justified in the circumstances.

Unfortunately, as much as managers might think (or hope) underperforming or misbehaving employees can be fired on the spot, the law does not normally allow for such immediate decisions to be made.

Australian employment law provides a number of protections for employees from unfair or unlawful dismissals. This is why the act of terminating a person’s employment can often take weeks, or even months, as an employer strives to ensure that a fair and lawful process is followed. Businesses often take these steps to ensure that any fallout, by way of employee claims, is minimised.

However, there are some occasions when an employee’s misconduct is so serious that immediate dismissal is justified. But even when the circumstances seem clear cut, an employer cannot jump to conclusions.

Employment legislation gives specific examples such as theft, fraud, assault, being drunk at work (for example, the good old Melbourne Cup lunch), or failing to follow an employer’s lawful and reasonable instruction. But it is not always easy to determine if an employee’s actions actually constitute “serious misconduct” in the eyes of the law. 

It can be helpful to consider the following questions. If these questions are answered mainly in the positive, the more likely it will be that summary dismissal may be justified.

1. Was the misconduct wilful or deliberate?
2. Was the misconduct inconsistent with the continuation of employment?
3. Did the misconduct cause a serious and imminent risk to other people’s health and safety?
4. Did the misconduct cause a serious and imminent risk to the reputation, viability, or profitability of the business?
5. Has the misconduct permanently destroyed the relationship of trust and confidence between the employer and employee?

In the end, each instance of misconduct has to be considered on a case by case basis, and it should not be assumed that a finding of serious misconduct will be made. As tempting as it might be to shortcut the dismissal process, it can ultimately lead to more time and money being expended if the dismissal is litigated. It can also damage your business’s reputation, internally and externally, if it is perceived to have overreacted in the circumstances. It is better to act carefully and thoughtfully prior to termination, than to try to clean up the messy aftermath of any unjustified summary dismissals.

Aaron Goonrey is a Partner and Luke Scandrett is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice.

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