Summary Dismissal

If an employee who has committed an act of serious misconduct, the employer is often faced with the dilemma of an appropriate response. There are essentially four available courses of action: disciplinary interviews, the imposition of a disciplinary penalty, termination of the employment contract or summary dismissal. 

A moment should be devoted to summary dismissal, which is the most far-reaching measure, resulting in termination of the employment contract instantly (without notice) and, moreover, having very significant consequences for the employee. 

First of all, it should be pointed out that the basis for summary dismissal is a serious breach of fundamental employee’s duties (serious misconduct). The most important element is the question of the severity of misconduct, as only qualified serious misconduct justifies parting with the employee under the summary procedure.

However, when assessing the employee’s behaviour, two levels must be taken into account: the type of professional duty breached and the degree of culpability of the employee. With that said, the subjective element – fault – is crucial.

Court case law is extremely strict in assessing the degree of fault of an employee as a premise for summary dismissal. The employer should therefore consider whether it is in its interest to take the questionable decision to terminate an employment contract without notice, which involves the risk of reinstatement with back pay or compensation ordered by the court.

It is impossible to create a complete catalogue of circumstances that justify summary dismissal. However, as an example, it is possible to point out cases that have been recognised as serious misconduct:

• misappropriation of the employer’s property
• refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment
• attending work intoxicated by illicit drugs and/ or alcohol
• insulting superiors, subordinates and other colleagues (e.g. offensive gestures)
• use of psychological violence (e.g. swearing, insults, threats), physical violence (e.g. hitting, kicking or punching) and cyberbullying to harass or insult (e.g. sending abusive emails, text messages or MMSs)
• bullying or harassment
• unexcused absence from work (even one-off)
• arbitrary use of time off work (annual leave or job search days)
• posting on internet forums or social networks that undermine the good of the company (e.g. corporate heath) or of colleagues (e.g. personal heath)
• engaging in competitive activity without the employer’s consent
• an employee knowingly arranging the simultaneous transfer of several employees to an employer engaged in competitive activity
• use of a company phone by an employee to participate in social or gambling games
• sending files containing company customer databases to a private email
• copying confidential data from a company computer posing a threat to the employer’s property and non-property interests.

However, as indicated earlier, the grounds for summary dismissal are interpreted strictly, which should prompt employers to decide in non-obvious cases to apply summary sanctions or to terminate the contract as usual.

If, however, the employer decides to dismiss an employee on summary grounds, it should not delay – the declaration will only be effective within one month of the occurrence of the underlying event.