What is serious misconduct?

When you think of serious misconduct in the workplace, most people generally associate it with things like committing theft, fighting, bullying, harassment or discriminatory behaviour. But few of us ever consider whether inappropriate pooing in the workplace constitutes serious misconduct. What are you on earth writing about you are thinking. Serious misconduct a surprising answer in dismissal case, diversifying the usual work place circumstance.

In this article, we’ll look at a case that involved an employee who was dismissed for serious misconduct after feeling the need to publicly relieve himself while at work. The case was brought before the Fair Work Commission (FWC), whose final ruling may surprise you.

We must warn you, however, that if you’re squeamish about bodily functions, you may not want to read about the case below. But if you aren’t, it’s surely an entertaining read that will also inform you about the nuances of serious misconduct dismissals. Before we get into the details of the case, let’s first define what constitutes serious misconduct.

What is serious misconduct under the Fair Work Act?

The FWC states that serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. 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.

Common forms of serious misconduct include sexual harassment, assault, fraud, intoxication at work, theft. The refusal to execute instructions consistent with the employment contract. It’s important to note that an employer doesn’t have to provide an employee with paid notice of termination if they have been dismissed for serious misconduct.

Courier finds himself in the poo at work and later dismissed for serious misconduct

On the night of 5 July 2015, Sydney-based courier for Dorevitch Pathology, George Moskou, was making a visit to a client’s medical clinic. He had been feeling unwell during the day. While walking back to his car after checking the clinic’s night box, he suddenly felt the need to defecate desperately.

Feeling like he had no choice in the matter. Mr Moskou proceeded to head around the corner of the medical clinic. There, he found a dark section of the car park where he subsequently did his business. Having washed his hands under a tap, Mr Moskou retrieved some tissues from his vehicle and attempted to clean up his mess as best he could. He even went so far as to call his partner to deliver some toilet paper, which she kindly did.

However, according to evidence he submitted to Fair work, Mr Moskou admitted that he had left a right old mess in the client’s car park. He told Fair work that his stools weren’t solid and that he left soiled tissues and toilet paper strewn on the asphalt. In addition to a few in the clinic’s garden bed. Mr Moskou humbly admitted to Fair work that, in hindsight, he should have picked up the soiled tissues and that he could have washed the area down. He stated that it was just an accident. He conceded that he had no idea who was going to clean up his mess.

Unfortunately for Mr Moskou, Dorevitch Pathology were later informed of his impromptu toilet break, and he was summarily dismissed for serious misconduct.

The employee challenges his serious misconduct dismissal at the FWC

In his unfair dismissal application to the Fair work Commission, Mr Moskou contended that his dismissal for serious misconduct was disproportionate. He argued that his actions after the pooing incident extenuated his wrongdoing. Namely, that he had attempted to clean up his mess, tried to contact his supervisor, and hadn’t denied that the incident had occurred.

Mr Moskou also submitted as evidence to the Fair work a letter from his doctor that stated he had gastroenteritis. This was why, the doctor claimed, Mr Moskou couldn’t wait to find a public toilet on the night of the incident.

The employer provides evidence to support the dismissal for serious misconduct

Dorevitch Pathology, on the other hand, argued to the Fair work that Mr Moskou was dismissed for serious misconduct for two reasons. Firstly, because he had defecated on their client’s property. And secondly, because he failed to make a serious attempt to clean up his mess. Dorevitch Pathology asserted that it wasn’t notified of the incident by Mr Moskou, thereby preventing remedial action taking place. The company also said that their employee wasn’t frank when he was questioned about the incident.

Dorevitch Pathology also failed to accept the medical evidence Mr Moskou had provided at the time of his dismissal. The company argued that the letter provided by the doctor referred to a “medical condition” rather than gastroenteritis. Which was the key reason why Mr Moskou was forced to do his business in the client’s carpark. The company challenged the assertion that their employee couldn’t do his business somewhere more appropriate.  

Was it serious misconduct? The FWC makes its decision.

After weighing up the evidence of both parties, the Fair Work Commissioner found that on the night of the incident, Mr Moskou indeed “had an urgent need to defecate that he could not control.”

“There is no evidence before me that Mr Moskou had willfully used the medical clinic’s car park as a toilet,” said the Commissioner. “Rather, Mr Moskou appeared to still be embarrassed and uncomfortable when giving evidence about what had happened, some 3 months after the incident occurred.”

The Commissioner further stated “that no normal person would choose to do what Mr Moskou did. If there was either no need or if there was another viable option (i.e. a public toilet).” He also acknowledged Mr Moskou’s attempt at cleaning up his mess, while admitting that it wasn’t the most elegant solution to the problem.

“Therefore, I find that Mr Moskou had no other option, other than to defecate in the medical clinic’s car park. As he had an urgent need to defecate,” said the Commissioner. For these reasons, the FWC ruled that Mr Moskou’s summary dismissal for serious misconduct was unfair.

“In all the circumstances of this matter…on balance, I find that Mr Moskou’s summary dismissal was harsh,” the Commissioner said. “This is on the basis that, although the misconduct was serious, it was not serious misconduct and the misconduct was not so serious as to warrant dismissal without notice”.

Valid reason however is it serious misconduct

“There was a valid reason for the dismissal and the process was procedurally fair. However, summary dismissal in these circumstances was harsh and disproportionate. What was appropriate was dismissal with notice’. The Commissioner ruled that due to the breakdown in the employer-employee relationship, reinstating Mr Moskou was out of the question. He therefore decided to order Dorevitch Pathology to pay their former employee one weeks’ pay in lieu of notice.

Why the serious misconduct dismissal was ruled as unfair

The FWC states that if an unfair dismissal is alleged, the employer must prove that there was a valid reason for the dismissal. The reason must be “sound, defensible or well founded”. It doesn’t require conduct amounting to a repudiation of the employment contract.

When an employee is dismissed without notice for serious misconduct, like in the aforementioned case, the standard of proof is slightly different. The FWC in fact sets a very high bar that employers must meet to justify a dismissal for serious misconduct. The employer must not only prove that the reason for dismissal was valid, but also that it wasn’t harsh. Essentially, they must prove that the summary dismissal wasn’t a disproportionate response.

In the aforementioned case, the Fair work ruled that there was indeed a valid reason for the dismissal, and that the process was procedurally fair. However, the summary dismissal of Mr Moskou was deemed harsh and disproportionate. The Commissioner stated that the appropriate response to Mr Moskou’s misdeeds would have been a dismissal with notice.

Conclusion to Serious misconduct a surprising answer in dismissal case

Serious misconduct is a charge that employers are all too willing to make against their employees, even if their conduct wasn’t necessarily serious. This is because dismissing an employee for serious misconduct will cost them far less. It means that they don’t have to provide nor pay for an employee’s notice period. They can also potentially avoid paying the employee other entitlements, like annual leave or long-service leave.

If you think you’ve received an unfair dismissal for serious misconduct, A Whole New Approach can help you make your case at Fair work Our team of employment law experts have for over 20 years helped Australian workers fight for their rights against unscrupulous employers. We can simplify the process of submitting an unfair dismissal application. Explain your legal rights in terms you can easily understand. All fair work matters, probation period issues, workers rights, employment rights, forced to resign, abandonment of employment, call us.

Call us on 1800 333 666 for a free, confidential discussion.

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