Instant dismissal in Australia, a step-by-step guide for employers

When instant dismissal becomes your problem

The phone call comes on a Tuesday afternoon. A supervisor has found an employee altering time records, a client has alleged assault in the warehouse, or a delivery driver has returned visibly intoxicated. Ending the employment that day, without notice, feels like the only sensible response, and the law does allow it. But instant dismissal, which lawyers usually call summary dismissal, only holds up if you run a process, not just a decision.

By the end of that process you will have either a defensible summary dismissal or a documented decision not to dismiss, and you will know which one you can justify if the Fair Work Commission (FWC) reviews it. What many employers assume does not happen is that the FWC accepts the conduct itself as enough. Under s 387 of the Fair Work Act 2009 (Cth) (the Act), the Commission asks whether the dismissal was harsh, unjust or unreasonable, and that inquiry is as much about whether you gave the employee a fair hearing as it is about what they did. So there are really two questions to work through: whether you can end the employment immediately, and whether you should handle it that way rather than with notice, a warning, or a period of paid leave while you investigate.

What to check before you start

Run these checks before you take any step towards dismissal, because missing one of them is how an otherwise justified termination becomes an unfair dismissal application:

• Employment period: the employee must have completed the minimum employment period to be protected from unfair dismissal, which is six months, or 12 months if you are a small business employer (s 383 of the Act). Below that threshold you face no unfair dismissal risk, but general protections claims can still be made.
• The conduct itself: the alleged behaviour needs to fall within serious misconduct as defined in reg 1.07 of the Fair Work Regulations 2009 (Cth), which covers theft, fraud, assault and sexual harassment, intoxication at work, refusing a lawful and reasonable instruction, wilful behaviour inconsistent with the employment contract, and conduct creating a serious and imminent risk to health and safety or to the business.
• Your employer size: a small business employer is one with fewer than 15 employees, counting regular casuals and treating associated entities as one (s 23 of the Act). If you are a small business employer, the Small Business Fair Dismissal Code applies, and a dismissal consistent with the Code is not an unfair dismissal (ss 385 and 388 of the Act).
• Policies and contracts: a code of conduct, a drug and alcohol policy, confidentiality clauses and training records all help show the employee knew what was expected and what could happen if they breached it.
• Evidence on hand: CCTV, signed witness statements, system logs, swipe records and incident reports. If you cannot point to evidence, you cannot yet point to a valid reason.
• Recent history: any complaints the employee has made, leave they have requested, or workplace rights they have exercised. Dismissing someone who has just made a complaint is a classic general protections trap under ss 340 to 342 of the Act, which prohibit adverse action, including dismissal, because of a workplace right.

Step 1: Make the workplace safe

If there is an immediate risk to staff, customers or property, deal with that first. Separate the people involved, arrange security if needed, and direct the employee to leave the workplace while you work out next steps. Keep it calm and professional. This is not the moment to make accusations or announce a decision; anything you say now can be quoted back to the Commission later.

If the employee needs to stay away while you investigate, consider standing them down. The trap here is that s 524 of the Act only allows an unpaid stand down in three narrow situations: industrial action, a breakdown of machinery or equipment, and a stoppage of work for which you cannot reasonably be held responsible. A stand down pending an investigation is not one of them. That means the employee normally stays on pay during the investigation unless your contract or an enterprise agreement gives you a specific right to do otherwise, so factor the cost of a few paid days into your planning.

Step 2: Secure the evidence early

Evidence is what your decision will stand or fall on, and it is perishable. Collect it before you speak to the employee, not after. Depending on the allegation that can mean signed and dated witness statements, CCTV footage, system logs, emails and messages, swipe card records, incident reports, and photographs of damage or safety breaches. Restrict access to whatever you gather so it cannot be altered, and keep a record of who has seen it.

Do not skip this step because the conduct seems obvious. A dismissal based on a manager's word alone, with no supporting material, gives the FWC little to work with when it assesses whether there was a valid reason under s 387(a) of the Act. An employee who denies everything can turn an unsupported allegation into a finding that the dismissal was unfair.

Step 3: Put the allegations in writing and invite a response

Before any decision, the employee needs to know what they are alleged to have done, in enough detail to answer it. This is the show cause step. Send a letter or email setting out each allegation factually, the evidence you hold, and an invitation to a meeting to respond before any decision about their employment is made.

This letter does more than feel fair. Section 387(b) of the Act requires the FWC to consider whether the employee was notified of the reason for dismissal, and s 387(c) whether they were given an opportunity to respond. An employee who was never told what they were accused of, or who was dismissed before they could say a word, has a strong claim regardless of how serious the conduct was. Be specific. Allegations like "poor attitude" or "unprofessional conduct" are hard to substantiate; "on 14 May you altered your timesheet to record 11 hours for a shift you left at 3 pm" is something a person can actually answer.

Step 4: Hold the meeting and listen

Run the meeting properly. Explain the allegations and the evidence, give the employee time to respond and to ask questions, and offer them the chance to bring a support person. Section 387(d) of the Act separately requires the Commission to consider any unreasonable refusal to allow a support person, so a refusal you cannot explain can itself sink the dismissal. Take notes of what is said, and if the employee raises new information, take it seriously. A credible denial, an alibi, or a claim that another employee did it means you may need to investigate further before you can decide. Deciding in the meeting, on the spot, is exactly what converts a fair process into an unfair one.

Step 5: Decide on the evidence

Now weigh what you actually have. Is the conduct substantiated by the evidence, or is it still just an allegation? Does it fall within the serious misconduct categories, or would a final warning be more proportionate? Have you considered the employee's explanation, and can you say why you rejected it? Would the same conduct from another employee get the same response?

The FWC's criteria in s 387 of the Act reward exactly this discipline. There must be a valid reason related to the employee's conduct, the employee must have been notified of it, and they must have had the chance to respond. It also weighs the size of your business and whether you have dedicated human resources expertise, which works in your favour for a small operator, but it does not excuse skipping the steps entirely. Check your award or enterprise agreement as well, because some instruments impose their own disciplinary processes.

Step 6: Terminate in writing and finalise pay

If you decide to dismiss, put it in writing on the day. The letter should state the termination date, the reason in factual terms, what will happen with company property and system access, and the final pay details. Keep the letter accurate and consistent with your evidence. This is not the place for a character assessment of the employee or commentary about their history; an overreach in the letter can be used against you later.

On final pay, the news is better than most employers expect. Section 117 of the Act generally requires written notice of termination or payment in lieu, but s 123(1)(b) excludes employees whose employment is terminated because of serious misconduct. A genuine summary dismissal for serious misconduct does not require notice or payment in lieu. What the employee is still owed is their wages up to the termination date and payment for untaken annual leave under s 90(2) of the Act, and long service leave may also be payable depending on the state or territory. Pay these promptly and in full, because an underpayment claim is a separate fight you do not want to add to an unfair dismissal one.

Where employers get held up

These are the points in the process where well-meaning employers most often come unstuck:

• Dismissing before investigating: The conduct may be real, but if you cannot evidence it, the valid reason collapses. Evidence gathering is the step that buys you the most defence, and it is the one most often skipped in the heat of the moment.
• Skipping the chance to respond: This is the most common procedural fairness failure and the one the FWC checks for explicitly in s 387(c). You do not have to accept the employee's explanation, but you have to hear it and genuinely consider it.
• Using instant dismissal for performance problems: Underperformance, mistakes and attitude issues are not serious misconduct. Using summary dismissal for them converts a fixable performance problem into an unfair dismissal application, because the employee was never warned and never given time to improve.
• Treating employees inconsistently: If you dismissed one employee for conduct that another received only a warning for, expect the Commission to ask why. Consistency is part of showing the decision was reasoned, not arbitrary.

When to get legal help before you act

For most instant dismissal situations it is worth getting advice before the termination letter goes out, and there are steps only a lawyer can properly do for you. An employment lawyer can assess whether the conduct actually meets the serious misconduct definition, advise on whether a stand down should be paid or unpaid in your circumstances, and draft the show cause letter and termination letter so they withstand scrutiny. They can also run the general protections risk check, which is where recent complaints or workplace rights make the dismissal dangerous, and advise on whether the Small Business Fair Dismissal Code protects you if you are a small business employer.

If the dismissal has already happened and the employee has filed, speed matters. An unfair dismissal application must be made within 21 days of the dismissal taking effect under s 394 of the Act, and a lawyer who is brought in early can prepare your response, gather the evidence into a coherent defence, and negotiate a resolution before the matter goes to a hearing.

What decides whether your instant dismissal holds up

The step that determines whether a summary dismissal survives is the one employers are most tempted to skip: the genuine, documented opportunity for the employee to respond before you decide. Everything else, the evidence, the eligibility checks, the letter, is built to support that moment, and it is the first thing the Commission looks for when it weighs whether the dismissal was harsh, unjust or unreasonable. Run it properly and you can dismiss instantly with confidence; skip it and the strongest misconduct case can still end in reinstatement or compensation.

Instant dismissal in Australia is available where an employee's conduct amounts to serious misconduct, from theft and fraud to assault, intoxication at work and refusal of lawful and reasonable instructions. The process is an investigation, a written allegation, a meeting with a genuine opportunity to respond, a decision on the evidence, and a written termination with correct final pay. Notice is not required for a genuine summary dismissal, unpaid stand downs pending investigation are not generally available under the Act, and small business employers should check their position against the Small Business Fair Dismissal Code. When in doubt about any of it, take advice before the termination letter goes out.