Dismissal letter for misconduct following disciplinary warnings

This letter forms part of our suite of materials to support you where you’ve invoked your disciplinary policy and its process because of inappropriate conduct by one of your employees.

This letter covers a dismissal decision for misconduct by an employee.

Please note that it’s not the same as the summary dismissal letter for gross misconduct by an employee.

Our guide on How to handle misconduct by an employee will highlight what you should have done by now and take you through the appropriate next steps.

We recommend that you have read this guide before continuing and that you and your employee follow the steps closely.

Gross misconduct covers different circumstances and can justify a near instant termination of the employee’s contract with you.

Gross misconduct is far more serious than other forms of employee misconduct.

Anything that counts as misbehaviour by an employee can be described as misconduct.

However, there are different types of misconduct that describe the various levels of seriousness: general misconduct (poor performance), serious misconduct, and gross misconduct.

If an employee does something that is so serious it destroys the employee-employer relationship, you’re able to dismiss them for gross misconduct rapidly, without notice and without any pay instead of notice – as long as you follow a proper and fair process of dismissal.

But you still need to demonstrate a fair dismissal process, so it’s rarely literally instant.

Lesser misconduct activities, for example: poor attendance and time keeping, unauthorised absence from work, being careless when carrying out work, time wasting, behaving offensively, making an excessive number of personal phone calls on business phones and unauthorised use of business equipment or property, will not constitute gross misconduct.

You should consider these within the ‘poor performance’ category of general misconduct, and/or potentially within serious misconduct – although repeated episodes might cumulatively end up with you being justified in taking more severe action, including dismissal, against the employee.

Take care when it comes to poor work performance, however, as this generally should not be treated as misconduct.

Here we’re talking about the outcome of the work carried out (a performance/capability matter), not the approach to it being carried out (misconduct).

Things like breaching works rules, or various other forms of improper behaviour are obviously correct to categorise as misconduct.

Poor performance on the job, however, is a more of a grey area.

Normally, such matters are dealt with under a capability procedure and are not categorised as general misconduct, as they’re often just down to ability (or lack thereof) rather than any intention to do the wrong thing.

Our step-by-step guide on how to handle employee performance will highlight what you should have done by now and take you through the appropriate next steps.

If your concern is more about the output of an employee’s work and its poor quality, you should take a look at our suite of performance-related letters.

Your employment contract with the employee and your disciplinary policy within your staff handbook should make very clear what behaviour or activity constitutes ‘gross misconduct’ and is therefore worthy of this escalated dismissal treatment.

Our guide to misconduct can help you to assess the seriousness of an employee’s behaviour and your rights in response to it.

Dismissal procedure

Dismissal decisions can be controversial and employees who face them may feel resentful, embarrassed, unfairly treated and angry, which can make discussions between you and them quite challenging.

Prior to reaching a dismissal decision and to sending this letter, you should have had at least one, if not more, meetings with the employee to explain your concerns about their conduct – this is the ‘disciplinary hearing’ referred to in the first paragraph of our template.

It’s important to ensure that the employee was told in advance that the earlier meeting was a disciplinary meeting, what aspects of their conduct have been identified as unacceptable and therefore ‘misconduct’, and about the range of potential consequences/sanctions that might be applied following the discussions at that disciplinary meeting.

If you have not considered the earlier letters in this template suite, such as an invitation to informal discussion about conduct or behaviour or a first formal warning in a disciplinary process, you should consider whether it would be more appropriate to complete these first.

For more background on this approach, see our guide to dismissing staff.

You should also make sure you’re following your own disciplinary policy in handling this situation.

You should only use this suite of materials in relation to employees.

If you were to apply your disciplinary proceedings to someone who is not an employee, or to treat them in an equivalent manner, this could lead inadvertently to the Workplace Relations Commission (WRC) concluding that that individual does in fact have employment status – which would include the enhanced rights attaching to such status.

It would be better to seek specific advice on how to handle anyone whose behaviour is a problem but who is not an employee.

Providing details of earlier warnings

There is no strict legal requirement to set out previous warnings, but it will be considered good practice to include these details, since the employee’s disciplinary history will be relevant to whether dismissal, rather than some other sanction, was a fair response.

This letter can then stand alone as a record of the disciplinary steps taken by the employer.

Any previous warning(s) relied on should still be ‘live’; employers should not rely on expired warnings to justify a dismissal.

Reasons for the dismissal

Employees who have achieved the necessary qualifying period of service for unfair dismissal (currently two years of service) are entitled, on request, to a written statement setting out the reasons for their dismissal.

Employees who are dismissed while pregnant or during statutory maternity or adoption leave must be given a written statement of reasons without having to request it, regardless of their length of service.

As a matter of good practice, we recommend that you do include these reasons as a matter of course.

How to complete the detail here

Set out details of your findings/decision in relation to each allegation of misconduct, summarising the key evidence from the investigation and disciplinary hearing.

Explain clearly why you’ve decided that the employee was guilty of the misconduct (if it is denied) and why you have decided that dismissal is now appropriate (including by referring to previous warnings).

We also recommend that you explain what alternatives to dismissal have been considered and why it was ultimately decided that dismissal was the appropriate outcome.

Effective termination date, if dismissal is immediate

If the letter is hand delivered or sent electronically on the same day, then the date you enter here should be the same as the date at the top of the letter, i.e. today’s date.

If the letter is being posted, it may be sensible to state that termination is two days later, as the rules around postal delivery assume this.

Legally, a dismissal is only effective once it has been communicated to the employee in question.