We often receive calls from clients who believe they can dismiss an employee without notice—also known as summary or instant dismissal—simply because their employment agreement references it. However, this is one of the most misunderstood terms in New Zealand’s employment vocabulary.
Let’s break it down.
What is summary dismissal?
Summary dismissal, also known as instant dismissal, is the immediate termination of an employee’s employment relationship without notice or payment in lieu of that notice, typically due to serious misconduct.
When is it justified?
You can summarily dismiss an employee if their actions amount to serious misconduct, and so severe that it justifies immediate termination. Your employment agreement should outline examples of serious misconduct relevant to your business. Common examples include violence, dishonesty, fraud, theft, serious breaches of confidentiality etc.
The key misconception: It not actually instant!
Despite the term “instant dismissal” you cannot instantly terminate an employee’s employment on the spot without first conduct a fair and thorough investigation.
To ensure procedural fairness, you must:
• Ask for their feedback or point of view and ask them to attend a meeting to discuss this
• Advise them of their right to be accompanied by a support person or representative of their choice
• Inform them of what the outcome could include if the allegations or concerns are substantiated
• Consider all the information at hand, including the employee’s feedback, prior to taking a decision on any disciplinary outcome
• Propose a preliminary outcome to the employee and ask for feedback or comment prior to confirming the outcome
In other words, while the dismissal itself may be without notice, the decision-making process must be fair and follow due process.
So, where does the instant come in?
If an employee is dismissed without notice (or instantly, summarily etc) it means they are not required to work out their notice period. A notice period is the time between giving notice and the date the employment relationship ends.
There are considerable risks with the perception of instant dismissal. We urge you to seek the advice of an expert if you’re dealing with serious misconduct.
Note: This article is necessarily brief and should not be substituted for professional advice.
Senga Allen | Managing Director