Imagine catching an employee red-handed, with their hands literally in the till taking money that was not for them to take. Or witnessing one member of staff physically beating up another or abusing a customer. Or perhaps, heaven forbid, having one of the team seen verbally abusing a show participant by viewers in their thousands on national TV! Yikes!
What would you have done if you were the employer in any of these cases? Would you have uttered those famous last words “you’re fired!”, perhaps mimicking Mr Trump of The Apprentice fame, or any other more colourful words to the same effect? Justified as you may feel to have done so, you would very likely have then had to take out your wallet in order to rectify what would be deemed to be an “unfair dismissal” and perhaps even, to add insult to injury, to pay compensation for hurting and humiliating your now ex-employee.
Possibly one of the most misleading and misunderstood terms included in many employment contracts and one of the worst misnomers in the NZ employment lexicon is “instant” or “summary” dismissal. Far too many employers believe that this gives them the right to dismiss someone “on-the-spot” if they believe that they have committed misconduct serious enough to warrant that outcome. This however is an expensive myth that needs to be busted.
Put quite simply, instant dismissal does not exist!
Without using too much legal jargon, before ending an employment relationship you need to ensure that you meet two major criteria. First of all the dismissal needs to be substantively justified – The ‘offence’ or misconduct needs to be so serious that you, as a fair and reasonable employer would be, are left with no option but to terminate the employment relationship. Most of the examples given above would likely pass this test on most occasions.
This alone, however, is not enough. You then need to ensure that the actual process you follow leading to the termination of employment is also procedurally correct. This involves taking a step back (and often a deep breath!) and raising the allegations with the employee, giving them reasonable opportunity to respond to the allegations in the presence of a support person, informing them that you will carefully consider their response before taking a decision on the actual outcome and that the outcome could include summary dismissal.
Then and only then, having met both of these two criteria, would you be able to justifiably dismiss an employee “summarily” as opposed to dismissing them “with notice”. Only then could you tell an employee that they are no longer welcome to be part of your team …. and hopefully you’ll find a better way of doing it than by simply saying “You’re Fired!”