On occasion, employers dismiss an employee instantly; such dismissal is referred to as a summary dismissal, the net effect of which is that such employee is dismissed without notice pay.  The fairness of such a summary dismissal will hinge on whether the employer was justified in dismissing the employee summarily and withholding payment of the otherwise contractual notice period.

In essence, the payment of notice pay on termination is a function of whether the employer deems the employee to have committed a fundamental breach of his/her employment contract.  Such fundamental breach would arise when, for example, an employee commits an act of gross misconduct.  The test therefore is, as would be required in common law, “has the employee disregarded a fundamental term of his/her employment contract”.

Ordinarily, gross misconduct will be evident when an employee is dishonest, insubordinate, or acts violently.  Acts of gross misconduct could also be specified in a company disciplinary code to address industry specific misconduct which would amount to gross misconduct.  For example, the failure by an employee to maintain personal hygiene standards may constitute gross misconduct in a food manufacturing plant even though this would not be the case on a construction site.

A series of minor offences also has the potential to coalesce into a sufficient reason for summary dismissal.  In the English case of Pepper  v  Webb [1969] a gardener, who was being reprimanded for his history of inefficiency and insolence, remonstrated by informing his superior that “I couldn’t care less about your bloody greenhouse and your sodding garden”; the English Court of Appeal upheld the summary dismissal of the gardener.

Grogan in Workplace Law (7th Edition) holds that summary dismissal occurs when an employer declares that it is no longer bound by the contract of employment from the date of dismissal, and that the effect of such summary dismissal is to preclude the employee from continuing to work in terms of the employment contract from the moment the dismissal takes place.

In Ngongoma  v  Education & culture & others (1992) it was held that under common law, an employee may be dismissed summarily only on the grounds of some misconduct justifying such summary dismissal and that it is only misconduct of such a nature that constitutes a breach of the contract of employment so material that it goes to the root of the contract.

If on the other and employee is found guilty of misconduct which is not gross in nature and does not amount to a fundamental breach of contract, the employer would be entitled to dismiss the employee (if appropriate in the circumstances) and pay the contractual notice pay.

In the final analysis, whilst summary dismissal is indeed an option available to employers from time to time, it remains an exceptional step rather than the norm.

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