Misconduct & Serious Misconduct

What is misconduct?

Misconduct is wrongdoing in the workplace. Usually it is deliberate conduct which falls short of the expected standards of behaviour in the workplace. Expected standards of behaviour would normally be outlined in your:

  • Workplace policies
  • Conduct policies
  • Corporate standards
  • Employment agreements
  • Work health and safety system

However, tribunals and courts such as the Fair Work Commission have been found willing to look wider to assess incidents of misconduct coming before them – as far as examining general practices of the workplace and even societal standards of behaviour.

For reasons set out in the Fair Work Act 2009, the way you will need to deal with various acts of misconduct are different to what is expected of acts of serious misconduct and distinct to how employers need to take action with staff for other sub optimal conduct, such as an employee who has an ongoing history of poor performance.

A more recent area of development is the increasing ability of employers to take action against employees for misconduct occurring out of the workplace or out of ordinary hours – provided there is a reasonable link back to the workplace.

When does misconduct become serious misconduct?

While the Fair Work Act 2009 does not provide a specific definition of general types of misconduct, it does provide a definition of serious misconduct which provides the conduct must:

  • 1. Be wilful or deliberate and inconsistent with the continuation of their employment; and
  • 2. Cause serious and imminent risk to:
    (a) health and safety of a person, or
    (b) the reputation, viability or profitability of the employer’s business

Generally, misconduct becomes serious misconduct when it is seen to be so grave that the employer is able to consider their employee has destroyed the necessary trust and confidence necessary for an ongoing employment relationship.

DID YOU KNOW?

The concept of serious misconduct arises from the common law and a long line of cases both in England and Australia and its various states. Over time, it has acquired a number of descriptions which continue to confuse employers. Here are just a few:

  • Summary dismissal
  • Gross misconduct
  • Dismissal for cause
  • Dismissal without notice

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Resources To Tackle Misconduct & Serious Misconduct


Misconduct Toolkit

All you need for your termination of an employee for misconduct or serious misconduct containing focused information and advice, easy to use tools, and employer only tips – all written by accredited employment law specialists. Save money and your valuable time by using our DIY approach – the whole package available to employers for less than an hours’ legal expense.


Step 1 – Dealing With Incidents Of Misconduct

Don’t find out too late you have gone down the wrong track in dealing with an incident of misconduct. Gain a quick overview of Australian workplace law regulating employers needing to terminate misbehaving staff. Find out the difference between serious misconduct justifying immediate dismissal and lesser forms of bad behaviour that may need to be repeated to substantiate a dismissal under the Fair Work Act. Learn the importance of recording your actions with misbehaving staff.

Step 2 – Misconduct Formal Warning Meetings

Find out how to conduct a formal warning meeting with an employee guilty of misconduct which falls short of serious misconduct justifying immediate termination. Be shown examples of warning letters which will stand up to scrutiny should you subsequently need to terminate an employee for ongoing misconduct. Become aware of the keys to providing procedural fairness so your termination for good cause is not overturned.

Step 3 – Termination For Misconduct & Serious Misconduct

Make sure you can conduct the final (or show cause) meeting with your employee in a manner that meets the requirements of Australian workplace laws. You normally only have one chance to get this right so find out first what the Fair Work Commission expects. Benefit from our tips on what to say (and just as importantly – what not to say) at your meeting. Write up your termination letter correctly by looking through our collection of sample termination letters and templates ready for immediate use.


How to handle misconduct incidents fairly?

How to handle misconduct incidents fairly?

Employers wanting to act fairly when dealing with employee misconduct must comply with the provisions of the Fair Work Act which requires employers to avoid acting in ways that are:

  • Unjust:
    Ask yourself – was the employee actually guilty of the alleged misconduct?
  • Unreasonable:
    Ask yourself – did the evidence you have of the incident reasonably support your finding of misconduct?
  • Harsh:
    Ask yourself – is the punishment ie termination, disproportionate or too harsh to the misconduct or to the financial or personal circumstances of the employee?

Take the time to test your proposed action against each of these criteria. Not acting in a harsh, unjust or unreasonable manner also requires employers being able to prove there is:

  • A valid reason for taking disciplinary action up to and including termination. Your reason must have been decided in an objective way according to the relevant facts about the employee’s conduct (and any work health and safety (WHS) impact on other employees; and
  • Compliance with essential procedural fairness elements including to:
    • Notify the employee of the misconduct allegations against them;
    • Provide them with the opportunity to respond to the allegations;
    • Allow a support person to assist your employee respond to the allegations;

What options do employers have when misconduct occurs?

What options do employers have when misconduct occurs?

Unfortunately, many employers take no action and hope the issue will go away. The advice from fairly is don’t be put off from taking ongoing action against an employee who is continuing to misbehave – your persistence and decisive action will pay dividends in one of two ways:

    • The employee gets the message and ceases their misconduct = you win
    • The employee just does not get the message and continues to misbehave in a way that justifies their terminate in the foreseeable future = you win
    • Remember the impact of a misbehaving employee is often felt most on their fellow workmates who need to cover for a poorly behaving colleague who is simply not pulling their weight.

What is the termination process for misconduct?

What is the termination process for misconduct?

While each incident of misconduct involves some wilful or deliberate action by your employee in breach of workplace policies, procedures or standards, their less severe nature than serious misconduct means that a single incident will generally not be sufficient to constitute a valid reason for termination. Therefore, to justify termination for normal misconduct, you will need to be able to prove that your employee either:

      • Engaged in repeated instances of the misconduct, despite warnings not to do so; or,
      • Engaged in repeated instances of this misconduct and other types of misconduct or poor performance, despite warnings not to do so.

An important of your process will be making sure you have adequate records of all acts of misconduct as well as details of all warnings issued to your employee arising from their misbehaviour. You will then need to prove you have provided procedural fairness throughout your termination process, including:

      • Adequate notification of misconduct issues to employee – which places the employee on notice about unsatisfactory conduct;
      • Providing employee the opportunity to respond to misconduct allegations;
      • Allowing employee to have a support person present to assist in discussions; and
      • Making sure your decision to terminate is based on the evidence reasonably available at the time.

What is the termination process for serious misconduct?

What is the termination process for serious misconduct?

Unlike general misconduct, a single act of serious misconduct and not a series of repeated incidents is needed to justify termination. This is because the single act is deemed so grave that it has destroyed the necessary trust and confidence necessary for an ongoing employment relationship.

As such, you need to be quite sure of the facts of the incident before taking action – this normally involves some sort of internal (or external) investigation. With the fact of the matter now available to you, it is necessary to provide details of the allegations to your employee and request their attendance at a ‘show-cause’ meeting. This is their opportunity to respond to the allegations of serious misconduct and provide reasons why they should not be terminated on the spot. Employers wanting to act fairly will ensure they provide procedural fairness and then make a decision on termination, take their employee’s responses into account.

What are the dangers for employers mishandling misconduct or serious misconduct?

What are the dangers for employers mishandling misconduct or serious misconduct?

Our experience shows the greatest risk for employers is acting in the heat of the moment to terminate an employee instantly, rather than assessing the nature of the misconduct in a calm and measured manner before going through the necessary process to justify terminating the employee fairly.

This present major problems should they be required by the Fair Work Commission to justify their hasty actions at a later date. While the Fair Work Act provides employees guilty of serious misconduct with fewer termination entitlements than those employees who have transgressed in a lesser way ie not being eligible for paid notice of termination of their contract of employment as well as differential provisions for eligibility to pro-rata long service leave, for these same reasons, the Commission places a higher standard on employers seeking to dismiss for serious misconduct to prove the employee’s guilt and the reasonableness of their decision to terminate summarily.

What professional help or guidance is recommended for employers to avoid making mistakes with misconduct issues?

What professional help or guidance is recommended for employers to avoid making mistakes with misconduct issues?

A common mistake is to delay taking action on misconduct issues due to a lack of internal resources to investigate the misbehaviour.

The first and most time pressing action point you currently have is to hold your employee accountable for the latest incident of misconduct. Taking timely and positive action NOW means you should be able use this incident of misconduct as evidence of ongoing misconduct. Delaying action may mean you could forfeit the ability to use the latest incident of misconduct and will instead need to rely on any future incidents of misconduct. Accordingly, if necessary seek immediate assistance in having a valid, legal and compliant investigation conducted and then make your decisions on their findings.

If unsure at any time, seek guidance on the process you need to take as the Fair Work Commission will be pressed by your dismissed employee to order substantial compensation or even to reinstate them to their former job for any procedural deficiency alleged during the termination process.

Remember, that once a decision to terminate has been communicated to your employee, it is almost impossible to change your mind, or the process used to reach the decision, even if major procedural deficiencies have taken place, and you will be held accountable for these by the Commission.

Why use Fairly’s downloadable products rather than visiting an employment lawyer in person?

Why use Fairly’s downloadable products rather than visiting an employment lawyer in person?

Your cost and time are the key answers. Lawyers need to maintain expensive offices and support staff to provide services to their clients. They are also normally very busy and getting an appointment to see them about a pressing misconduct issue can substantially delay any action you need to take.

Compare this to the Fairly suite of downloadable products that cost a small fraction of the cost even an hour with an employment lawyer, yet are produced by lawyers with Law Society certified specialist accreditation in workplace law. What’s more, the advice you need is instantly available in easy to follow format, allowing you to commence your action right away to deal effectively, yet fairly, with a misbehaving employee.

How do the Fairly misconduct products compare with other online templates and guides?

How do the Fairly misconduct products compare with other online templates and guides?

Many of the products that seek to compete with Fairly are written by solicitors or industrial relations practitioners in a way that totally confuses readers with its complex wording and impractical directions on what to do.

In stark contrast, Fairly products have been thoroughly tested with employers like your business to ensure they are:

        • Easy to read
        • Provide practical action points
        • Avoid ‘legalise’
        • Step-by-step
        • Up to date
        • Written by highly experienced Law Society accredited employment law specialists.

Just as importantly, all fairly products are written just for employers, to assist employers, unlike much other advice on-line designed to assist employees take action against their employers.