The term ‘serious misconduct‘ is used often, but understanding its true meaning is critical, especially when it comes to termination decisions.
Under Regulation 1.07 of the Fair Work Regulations 2009 (Cth), serious misconduct includes behaviour that is wilful or deliberate, and fundamentally inconsistent with the employee’s contract of employment. It can justify summary dismissal (that is, termination without notice).
Some examples include:
- Theft or fraud
- Assault or threats of violence
- Serious breaches of health and safety obligations
- Intoxication at work
- Refusing to follow a lawful and reasonable direction
However, it’s important to recognise that not every instance of ‘bad behaviour’ qualifies. The key test is whether the employee’s conduct has destroyed the trust and confidence in the employment relationship to such a degree that it cannot continue.
Even in cases of serious misconduct, procedural fairness remains essential. A rushed dismissal without giving the employee an opportunity to respond can still amount to unfair dismissal, even where the seriousness of the conduct seems clear-cut.
It’s always important to proceed carefully. A well-documented process, a clear understanding of what constitutes serious misconduct, and appropriate legal advice can mean the difference between a lawful dismissal and a costly claim.
Need help dealing with conduct in the workplace? Have a performance issue you’d like to discuss? Reach out to our experienced team.