Serious Misconduct

The Fair Work Regulations provides guidelines as to what constitutes serious misconduct in employment which may justify the summary termination of employment. It lists such examples as fraud, theft, sexual harassment and serious health and safety breaches.

The Regulations also look at willful or deliberate behaviour by an employee that indicates they no longer feel bound by their contract of employment such as they are not working as required or not following directions. There is also provision for conduct by an employee that causes serious risk to the reputation, viability or profitability of the employer.

However, what is deemed serious misconduct can be conduct outside the list in the Regulations and the Fair Work Commission has often stated that there can be a number of circumstances that constitute serious misconduct which can include the seniority of the role, the employer’s policies and the nature of the conduct. This can include out of hours conduct.

However, it is not just a case of discovering serious misconduct and terminating the employee immediately. Procedural fairness is still essential. Often in an unfair dismissal claim the Fair Work Commission will find that there was a valid reason for the termination of employment but the employer failed to provide procedural fairness. This includes advising the employee of the issues of concern and giving them the opportunity to respond and give their side of the story before making a decision. Of particular concern is when an employer doesn’t follow their own policies and procedures.

In recent times the Fair Work Commission has also put considerable weight on the impact a dismissal would have on the employee, and look at length of service, family responsibilities and the job market.

If you have a concern as to an employee’s conduct it is best to get advice before terminating an employee's employment. Andrew can assist in this regard and even attend on-farm to ensure that everything is done in accordance with the requirements of the legislation and advise whether the termination is even the right cause of action.