Under the Fair Work Act 2009, non-casual employees must generally be provided with ‘notice’ if they’re being dismissed. The amount of notice that must be given is based on the employee’s period of continuous service with their employer: the longer they’ve been employed, the more notice they’re entitled to receive.

However, an employee being dismissed for ‘serious misconduct’ – usually defined to include theft, violence and fraud – loses their right to receive notice. Terminations due to serious misconduct are, accordingly, often referred to as ‘instant’ or ‘summary’ dismissals.

What most employers don’t realise is that even so-called ‘instant dismissals’ still require employees be given an opportunity to explain why they shouldn’t be dismissed before their termination is formally confirmed.

For example, imagine you’ve just witnessed one of your employees shoving money from the till into their pockets. Most employers would be inclined to immediately confront the employee, demand the money be returned, and then walk the employee out of the workplace for good.

While this would be immensely satisfying, it would also amount to an ‘unfair dismissal’ under the current laws. Incredibly, this could result in you being ordered to pay the employee compensation or even reinstate them!

The good news is that it’s relatively easy to avoid this outcome – you simply need to provide the employee with an ‘opportunity to respond’ (sometimes referred to as a show cause’ opportunity) before you end their employment.

In the above example, the dismissal would likely be fine if the employee:

  • was informed their alleged theft had been witnessed
  • was advised they’d be dismissed without notice unless they could provide a reasonable response to the allegation, and
  • provided with an opportunity to formally respond before dismissal was confirmed.

As a matter of best-practice, the team here at Workforce Guardian also recommend employers document the entire process just in case an unfair dismissal case is ultimately lodged.

Trust me when I say that taking a small amount of time at the start to ensure the dismissal process is lawful can save you a huge amount of time (and stress, and money!) down the track.