Sometimes the mechanisms in most employment contracts will be redundant when it comes to the question of terminating the employment relationship. For example, if the parties simply agree to end the contract. Most employment contracts will also contain a provision relating to summary dismissal. The major issue which tends to arise in relation to matters like this is the level of misconduct required before a employee can be summarily dismissed. It has been compared by some comentators to a situation in contract law where there is a repudiatory breach such that it envinces an intention to repudiate the contract. The conduct which is most likely to result in a finding that summary dismissal is justified is fraud, serious dishonesty affecting the interests of the employer or possibly conviction of a criminal offence related to employment.
The onus of establishing the existence of a ground for summary dismissal lies on the employer. The emloyer may rely not only upon the breaches which actually motivated the dismissal but also on any other evidence which subsequently some to light as to the employee;s conduct. The employer may not rely on any breaches where there has been an election to waive the right of termination. Despite the existence of these basic ground rules, often the facts will determine the outcome of these matters but the pattern found in case law is that it will usually involve a refusal to perform duties required under the contract or the inability to reach the required standard of work performance.
In most jurisdictions in the United States, the right of summary dismissal will be available to the employer unless this right has been specifically excluded by the contract concerned. Even then, there are some examples of legislative provisions in operation where there is no capacity to contract out of this right. Legislative provisions as to the circumstances which are to give rise to the availability of summary termination remedies are only specific in some jurisdictions and it is not the case that in every jurisdiction of the United States, there has been a clear legislative message about this issue. In general, the legislative provisions which do exist are available on the basis of what was already part of the common law but not codified. Common law principles were seen as an early stage prior to the development of legislation which affected the rights of employers and employees in relation to summary dismissal.