FAQ series: Question 2 – I caught an employee taking money from the cash draw and I told him to get out there and then, and to not come back. He has now made an application for unfair dismissal, how can he do that, isn’t that a summary dismissal?
There is never a time when it is appropriate to terminate the employment of an employee without giving them natural justice. Even where it appears that there is nothing the employee might be able to say that would change the situation, you are required to give them the benefit of a fair process. That is, at the very least, you must give them an opportunity to explain and you must genuinely consider what they tell you. If after you give the employee natural justice you reach the conclusion that their employment should be terminated, you then have two options. You can summarily terminate their employment or you can give them notice of the termination of their employment. Summary dismissal is dismissal without notice, it is not dismissal without a fair process. Therefore, although you have dismissed the employee without notice (summary dismissal) you have not given the employee a fair process prior to the dismissal, and on that basis they could challenge the dismissal.
It is very important, no matter what you believe the employee may have done or how much evidence you have that the employee has done the wrong thing (for example you may have CCTV footage of him taking money from the cash draw) you must still ensure there is a fair process undertaken prior to making a decision to terminate employment.
Keep an eye out for the next FAQ in the series. Please do not hesitate to contact us if we can be of assistance in any HR or IR issue email@example.com or 3218 3919.