Summary dismissals in the workplace

Summary dismissal, also referred to as an immediate termination, is where an employee is dismissed from their job without notice or pay in lieu of notice.

While considered a suitable course of action in certain circumstances, summary dismissals can carry significant risks and may have a profound impact on remaining staff within the practice. This article will explore the risks and considerations associated with summary dismissals and provide guidance on how to handle the effect on remaining employees. Risks associated with a summary dismissal can include claim risks, financial consequences, and reputational damage to the dental practice. Circumstances that constitute serious misconduct and may allow for a summary dismissal could include theft, fraud, assault, sexual harassment or where an employee causes imminent risk to the health and safety of others. Due to the nature and severity of this type of a misconduct, dismissing an employee immediately and with no notice is likely to be more appropriate and carry less risk. Comparatively, where an employee is dismissed summarily for reasons other than serious misconduct and without consideration for procedural fairness, this could constitute an unfair dismissal, discrimination or general protections claim risk, and result in significant legal ramifications and costs for the practice. Summary dismissals may result in a loss of productivity as other employees within the practice become distracted or demotivated by the sudden termination of their colleague. This can have a ripple effect on the overall morale and culture of the practice, potentially leading to increased turnover and a requirement to inject more time and financial support into recruitment initiatives.

When considering a summary dismissal, practice owners or managers should take several factors into consideration. Firstly, they should ensure that the employee's behaviour or performance has been clearly documented and communicated to them, giving them an opportunity to improve on the identified misconduct. It is important to ensure that the dismissal is not based on discriminatory reasons such as race, gender, or age, as this can open the practice to additional claim risks. Practices should also consider whether less severe disciplinary action, such as a written warning, would be more appropriate before resorting to summary dismissal.

If the practice does decide to proceed with summary dismissal, they should follow proper procedures and ensure that the dismissal is communicated clearly to the employee. It is important to invite the employee to a meeting and allow them to have a support person present whereby the serious misconduct and dismissal can be discussed. Following this meeting, the employee should be provided with written confirmation of their dismissal, including the reasons for the dismissal and any entitlements they may be owed (this could include unused annual leave accruals). This can help to mitigate claim risks and ensure that the employee is not left confused or uncertain about the reasons for their dismissal.

The impact of a summary dismissal on the remaining employees within the practice can be significant. Employees may feel anxious or uncertain about their own job security, particularly if they were not aware of the reasons for the dismissal. Employees may also feel a sense of loss if they were particularly close to the dismissed employee, which can impact upon their productivity and engagement. Practice owners and managers should take steps to mitigate these effects by communicating clearly with remaining staff, addressing any concerns or questions they may have, and providing support and counselling if necessary. Practices should aim to strike a balance between upholding the privacy of the dismissed employee, while adequately informing remaining employees and reiterating conduct expectations. One effective way to manage the impact of summary dismissal on remaining employees within the practice is to hold a team meeting or briefing. This can be used to inform employees of the dismissal and any steps that can be taken to prevent similar incidents in the future. This can help to provide clarity for employees, as well as actively demonstrate that the practice takes employee concerns seriously. Practice managers or owners should also be prepared to answer any questions or concerns that employees may have, and to provide support or counselling if necessary. Overall, summary dismissals can be risky and a potentially damaging course of action for practices. While necessary in certain circumstances, practices should carefully consider the risks and take steps to mitigate the impact of summary dismissals on the remaining workforce. By following proper procedures and communicating clearly with employees, practices can avoid claim risks and ensure staff feel well-supported.

For more information on this article please call the ADA HR Advisory Service on 1300 232 462.

A report has been requested from me – what do I write?

Why do lawyers request reports from dentists and what do they want us to write?

Ms Helen Harborne, Legal Claims Manager at Dental Protection, discusses the issue.

You receive a letter from a lawyer regarding a patient you treated a while ago. You don’t remember the patient off-hand so you start to slightly panic as your mind races about what it is they might be accusing you of having done wrong. You begin to read the letter and let out a huge sigh of relief as you realise you are not being accused of anything at all, they just want you to write a report for them. Your heart rate finally returns to its normal rhythm when you start to feel a new sense of dread. Why do lawyers want a report from me and what on earth do they want me to write?

As a treating health practitioner, it is not uncommon to receive a request from a lawyer asking you to write a report regarding your treatment of a particular patient to assist them in some form of legal claim against another party. Depending on whether the information you provide is helpful or not to the case, your report may be used as legal evidence so it's important to consider a few things before you put pen to paper.

Understand the relevance

You will need to know a bit about what the patient's legal claim is about so you can understand the context in which your treatment of the patient is relevant to their claim and also to determine the information that is likely to be most beneficial to provide. Most letters from a lawyer will state in the subject heading and/ or the first sentence that they are acting for the patient in relation to a particular matter. Examples of common matters in which a report from a treating dental practitioner might be requested are criminal matters (such as an assault or domestic violence), a motor vehicle accident, a workplace accident or some other form of injury which resulted in damage to the face/ mouth. If the lawyer's letter does not provide enough information for you to understand the relevance that your treatment has to their claim, don't be afraid to call or email the lawyer and ask for the further information you will need to be able to write a meaningful report. We recently had a member that was subpoenaed by the police to provide evidence in relation to an assault charge where the patient had also been involved in a car accident. The member was asked to comment on whether the injuries that he treated were more consistent with an assault or a car accident. In order to be able to answer that question with any degree of confidence, the member genuinely needed to understand some of the circumstances surrounding both the assault and the car accident.

Answer the questions but remain impartial

Good lawyers are wordsmiths, so they are very selective and deliberate about their use of words. Read the questions set out by the lawyer carefully as this will guide you in relation to what they specifically want you to write about and will help set the focus for your report. However, you are ultimately the expert on the treatment provided and you are the author of your report, not the lawyer. Be mindful that there may be times when lawyers have a specific agenda they are trying to pursue, or alternatively, there may be times when the patient has not been 100% truthful with their lawyer about the circumstances surrounding the matter, so the questions may be angled a particular way.

You might find that to simply answer the specific questions that have been asked of you may not provide the full and correct context about a particular aspect of the treatment. If a lawyer has asked a particular question and you consider that there is further information which should be provided to properly elucidate the issue, then you should also include that further information.

Nothing but the truth

As stated earlier, your report may be used as evidence in a legal claim so you must ensure that it is truthful and accurate to the best of your knowledge and/or experience. Whilst these days very few legal claims will actually proceed to a full trial, you need to bear in mind as you are writing your report that you could be asked to confirm your opinion before a Judge and be cross-examined (questioned) about it. In the rare cases when that does happen, it can often be a year or two (or even many years) after you have provided your report, and long forgotten about the matter, that you are subpoenaed to give evidence in the trial. Therefore, it is imperative that you use language that is very clear to express your state of knowledge and opinion about the matter. For example, if you don't recall something from your direct memory but you are relying on your clinical notes to comment on a particular issue, write something like "Based on a review of my clinical notes I can confirm that".

If you cannot be certain of something that you have been asked to comment on, but you can provide an opinion based on your experience, you should write something like "I cannot be certain about whether [details], however based on a combination of my clinical notes and my experience, my opinion is that it is more likely than not that [details]", or something to that affect. Using very clear language will assist all parties involved but will also help with your own recall of your opinion (and the rationale for your opinion) potentially years down the track, particularly for a potential cross-examination.

Remember that the role of an expert witness is to provide relevant and impartial evidence in their area of expertise to assist the court in reaching its decision. Let the lawyer's request be a guide for your report but don't allow them to dictate your report or your opinion.

If you receive a request to prepare a report and would like some assistance, feel free to give Dental Protection a call.