Employment law – Summary Dismissal for Serious Misconduct

Date: Jun 22, 2009
Document Type: Article
Our client was the general manager of a national company who summarily dismissed him for ‘serious misconduct’. As a result our client was not entitled to avail himself of the dispute resolution procedures provided for in his employment agreement nor was he entitled to his wage, bonus and other damages.
The issue for decision was primarily whether the evidence disclosed grounds upon which the employer was entitled to summarily dismiss our client for ‘serious misconduct.
Our client denied any wrong-doing and commenced proceedings to clear his name as much as to recover the moneys due to him.
The case ran for five days in the District Court of New South Wales in Sydney. Judgment was handed down on 2 April 2009.
The employer dismissed our client on the basis he dishonestly concealed invoices. The allegations of fraud and dishonesty were made in the letter dismissing our client but not in the pleadings filed with the court on behalf of the employer.  In its pleadings the employer did not plead fraud or dishonesty relying rather on gross incompetence and other grounds as constituting serious misconduct and conduct which damaged the employer’s reputation.
At the hearing no allegation of fraud or dishonesty was made but the employer still relied on the matters pleaded as constituting good grounds for summary dismissal. Had these grounds been made out on the evidence the judge accepted that it is the law that the existence of those grounds at the time of summary dismissal may have justified the employer’s actions. However, the judge found our client had acted responsibly and diligently and did not find any serious misconduct on his part.
The Court found it was not open to the employer to terminate our client’s employment summarily. If there was a dispute our client was entitled to rely on the dispute resolution procedures set out in his employment agreement. He was not given this opportunity.
The Court ordered the employer to pay our client his unpaid salary and bonus entitlement, car allowance, annual leave and superannuation lost.
In a subsequent argument on costs the employer was ordered to pay our client’s costs on an indemnity basis.
The employer’s summary dismissal of our client proved an expensive way to terminate our client’s employment.
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