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Serious Misconduct in 2021 Workplaces

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Serious Misconduct in 2021 Workplaces, Unfair Dismissal Australia

The term ‘serious misconduct’ is something that is thrown around by employers way too much in the employment sphere. You may have heard it during a dismissal or when your employer is threatening your employment. ‘Serious misconduct’ is actually a legal term that will allow for employers to terminate you on that basis and bar you from receiving your normal entitlements when you exit your employment. For example, when you are correctly dismissed for this reason, you will be stripped from your entitlements to annual leave, long service leave, notice period and in the case a company is going through a downsizing or restructuring, any redundancy pay you might have been owed but for the alleged serious misconduct. In many cases this can be allot of money.

However, since employers know that they can significantly reduce the costs of having to terminate your employment by saying that it was for ‘serious misconduct’, they may wrongfully do this and unlawfully strip you of your rightful entitlements. Employers, especially in tough periods and situations, will rely on this method to drive their wages down and reduce payroll to save them some money. This is particularly relevant with the economy in recession at the moment, caused by the COVID 19 situation. Many employers are turning performance related situations into serious misconduct scenario’s, to avoid the proper payouts. At the moment one of the major words searched on our web site relates to situations around serious misconduct. Its actually quite disturbing. Employees are getting now dismissed for issues employers couldn’t have careless about or maybe told don’t do that again.

Thus, it is very important for you to know and determine whether your dismissal was likely for ‘serious misconduct’ or for mere misconduct. Now you understand there is a crucial difference. The Fair Work Commission decisions are very clear on the very high bar employers must meet to satisfy ‘serious misconduct’ of an employee. Some examples are provided, but are not limited to these:

  • Theft
  • Physical or verbal assault
  • Fraud
  • Intoxication or illicit substance abuse at work
  • Blatant disrespect for lawful and reasonable orders.

This is definitely not an exhaustive list but it could give you some flavor on whether your misconduct is more similar to a regular mishap in the workplace or something more onerous against the employer.

Fair Work Regulation 1.07 defines serious misconduct. Serious misconduct is conduct that is wilful or deliberate and that is inconsistent with the continuation of the employment contract. It is also conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business.

Serious misconduct includes theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract.

Where serious misconduct is alleged the test for a valid reason for dismissal does not change. The test remains whether the reason was ‘sound, defensible or well founded’. A valid reason for dismissal does not require conduct amounting to a repudiation of the contract of employment.

Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response.

Fair work Commission Benchbook

Call us at 1800 333 666 to receive a free consultation on whether we think your dismissal may not have been fair or unfair. We are A Whole New Approach P/L, Australia’s leading workplace representatives, get honest, prompt advice that is free. All states, NSW, Vic, Qld, SA, WA, Tas. Any Fair work Commission matters, including unfair dismissals, workplace investigations, bullying, whatever call us, everything is confidential.

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