Notice and summary dismissal
Dismissing without notice is the exception, not the default — and the bar for it is set by a regulation, not by how angry the employer is.
What you’ll be able to do
- Explain when an employer must give notice (or pay in lieu) of termination, and when it doesn’t have to.
- Apply the Regulation 1.07 definition of “serious misconduct”, and tell it apart from the s.387(a) valid reason test.
- Spot the pattern where a summary dismissal survives as a valid reason but still costs the employer a notice payment.
The notice obligation
The default position is that an employer must not end someone’s employment without giving notice, or paying them in lieu of it. The obligation to pay notice is outlined in s.117 of the Act [2022] FWC 1273 at [46]. That default applies whatever the employer thinks of the employee’s conduct — it only falls away if a specific exception applies.
The summary dismissal exception
Serious misconduct is one of those exceptions. Section 123(1)(b) of the Act provides that an employer is not required to pay notice to an employee whose employment is terminated because of serious misconduct [2022] FWC 1273 at [46].
“Serious misconduct” isn’t whatever the employer chooses to call it. It’s defined by Fair Work Regulation 1.07, and it includes:
- wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment, and
- conduct that causes serious and imminent risk to the health or safety of a person, or to the reputation, viability or profitability of the employer’s business
The regulation also lists specific conduct — theft, fraud, assault, sexual harassment, intoxication at work, refusing a lawful and reasonable instruction — as examples that will meet the standard on their own.
Don’t conflate this with the valid reason test
This is the trap Module 5 (Valid reason) already flagged. The s.387(a) valid reason test and the reg 1.07 serious misconduct test are not the same test, and meeting one doesn’t require meeting the other. As the Full Bench principles put it: the criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a) [2023] FWC 65 at [36].
In practice this cuts both ways:
- Conduct can be a valid reason for dismissal under s.387(a) without being serious enough to justify summary dismissal under reg 1.07 — in which case the employee can still lose the unfair dismissal case on valid reason, while the employer separately owes notice.
- Conduct that meets the reg 1.07 bar will almost always also be a valid reason, but that’s a consequence of how serious reg 1.07’s own threshold is — not because the two tests ask the same question.
What the Commission looks for in applying reg 1.07
- Deliberateness, not just seriousness. A considered, repeated refusal to follow a lawful and reasonable direction can be conduct that is inconsistent with the continuation of the contract of employment under reg 1.07(2)(a), even without dishonesty or violence [2022] FWC 1273 at [47].
- Gravity and context. Whether conduct poses a serious and imminent risk to reputation or safety is weighed against factors like the seriousness of what was alleged and the seniority of the people involved [2024] FWC 2513 at [51].
- Deliberate is not automatically enough. Conduct can be deliberate and still fall short of reg 1.07 if it doesn’t breach a clear policy and doesn’t show the kind of calculated disregard the regulation is aimed at [2021] FWC 6693 at [48].
The practical risk of getting it wrong
Summarily dismissing someone for conduct that turns out not to meet the reg 1.07 bar doesn’t just risk losing on valid reason — it can turn an otherwise defensible dismissal into an unfair one, for no reason other than the missing notice.
In one matter, the Commission found the employee’s conduct was serious enough to be a valid reason for dismissal, but not serious enough to meet reg 1.07 — so Mr Chebbo should have been dismissed on notice, and the decision to dismiss him summarily was harsh [2021] FWC 6693 at [48]. Because that was the only unfairness in the case, compensation was confined to the decision not to terminate on notice [2021] FWC 6693 at [49] — in that matter, four weeks’ pay.
The adviser’s takeaway: if the reg 1.07 bar is genuinely in doubt, paying notice and dismissing for conduct anyway is usually the safer default. The employer still loses the employee. It just doesn’t compound a conduct dispute with an avoidable notice claim.
How summary dismissals fail
Deliberate, but not serious misconduct
Dismissed on the spot for attending a protest in breach of a stay-at-home direction. The conduct was deliberate and put the employer’s reputation at risk — but didn’t meet reg 1.07. [2021] FWC 6693 at [48]
Deliberate isn’t the same as “serious misconduct”. If it’s close, pay the notice.
No valid reason, and no notice
Dismissed with immediate effect over a disputed “resignation” that the Commission found never happened — with no notice period given on top of no valid reason at all. [2024] FWC 913 at [95]
A weak conduct case and a missing notice period compound each other — don’t let both happen at once.
The label was too strong for the facts
A seven-year employee with performance difficulties was summarily dismissed for “serious misconduct” where the facts, at most, warranted a review, a caution and some coaching. [2024] FWC 3291 at [72]
Reach for “serious misconduct” only when the facts actually clear the reg 1.07 bar — not because it’s the stronger-sounding label.
Adviser checklist
Work through this before recommending a dismissal without notice. If the reg 1.07 limb can’t be named and evidenced, pay notice instead.
- Which limb
- Evidence
- Proportionality
- Don't conflate the tests
- If in doubt
- Paperwork
Practice scenario: the loading dock
Fictional scenario. Write your answers, then reveal the model answer.
This is a fictional scenario. Priya is a senior chef at a mid-sized restaurant group, four years’ service, no prior warnings. During a delivery, she had a loud, heated argument with an external supplier’s driver over a late and partly spoiled order, in front of two junior kitchen staff. No physical contact occurred, but Priya swore at the driver and told him to “get out before I throw you out.” The driver complained to the restaurant’s head office the same afternoon.
The General Manager wants Priya dismissed that afternoon for “serious misconduct”, without notice, citing the risk to the supplier relationship. Priya hasn’t been asked for her account yet.
- Not on the facts available yet. The outburst was deliberate in the sense that Priya chose her words, but deliberate rudeness toward one supplier’s driver is a long way from the examples reg 1.07 gives (theft, fraud, assault, intoxication) and isn’t obviously “serious and imminent risk” to the business — one complaint about one driver isn’t yet evidence the supplier relationship itself is at risk, let alone imminently.
- Notice: unless further facts emerge that clearly meet the reg 1.07 bar, the safer course is to stand Priya down (on pay) while the complaint is investigated, then decide between a disciplinary outcome short of dismissal, or dismissal on notice — not a same-day summary dismissal.
- Missing: Priya’s account of what was said and why; whether the driver’s conduct (a late, spoiled delivery) provoked the exchange; whether the supplier has actually threatened to end the relationship, or whether that’s the GM’s assumption; any history of similar conduct from Priya; and what the restaurant’s own conduct policy says about dealing with external contractors.
Where it could land, depending on what the further inquiries show:
Decisions cited
Check each paragraph reference against the published decision on the FWC website before relying on it. Sydney Trains v Hilder is cited as quoted in a later decision and still needs checking against the original. The row marked “partial” confirms the proposition pinpoint and the unfair-dismissal finding, but not the final compensation amount, which that decision deferred.
| Decision | Outcome (confirmed from the text) |
|---|---|
| [2024] FWC 913 Campbell v Gold Tiger Logistics Qld | Dismissal found unfair, confirmed at [106]. The Commission found there was no valid reason for the dismissal at all — confirmed at [87] — and separately that Ms Campbell was dismissed with immediate effect and given no notice period — confirmed at [95]. [106] |
| [2024] FWC 3291 Black v Baker Heart and Diabetes Institute | partialDismissal found unreasonable (no valid reason) and harsh, confirmed at [72]: characterising Mrs Black's conduct as serious misconduct warranting summary dismissal was a disproportionate response. Compensation (not reinstatement) was found appropriate in principle at [74], but the Commission deferred the final amount pending updated particulars — that further remedy material was not read in this pass, so it is not asserted here. [72] |
| [2024] FWC 2513 Xu v Hisense Australia | Application dismissed — not satisfied the Applicant was unfairly dismissed, confirmed at [71]. The Commission found Mr Xu's conduct (broadcasting unsubstantiated allegations against senior colleagues by email and WeChat) met the reg 1.07 definition of serious misconduct and established a valid reason for dismissal — confirmed at [51]. [71] |
| [2023] FWC 65 25 employees v DP World Sydney & Brisbane | Cited here only for its restatement of the Sydney Trains v Hilder principles at [36]; this case's own outcome is not relied on and not asserted. [36] |
| [2022] FWC 1273 Benamar v Moreland City Council | Application dismissed — dismissal not harsh, unjust or unreasonable, confirmed at [53]. The Commission found Mr Benamar's repeated refusal to comply with a lawful vaccination direction was serious misconduct within the meaning of reg 1.07, so no notice or payment in lieu was required under ss.117/123 — confirmed at [46]-[47]. [53] |
| [2021] FWC 6693 Chebbo v Major Crane Logistics | Dismissal found harsh, and therefore unfair, confirmed at [48]: Mr Chebbo's conduct (attending a protest in breach of stay-at-home orders and a direction to go home) gave the employer a valid reason to dismiss him, but did not meet the reg 1.07 threshold for serious misconduct, so he should have been dismissed on notice rather than summarily. Compensation was ordered equivalent to the notice period he was denied (4 weeks' pay) — confirmed at [49]. [48] |
- Sydney Trains v Hilder [2020] FWCFB 1373 — quoted in [2023] FWC 65 at [36]. Check against the original before relying on it.