Serious Misconduct in 2022 Workplaces,
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. It’s on that basis and bars you from receiving your normal entitlements when you exit your employment. Serious Misconduct in 2022 Workplaces is important reading.
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.
Reduce cost by saying it was serious misconduct
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. Serious Misconduct in 2022 Workplaces is more relevant than ever before.
How does gross misconduct differ from misconduct?
How does misconduct differ from ‘gross’ misconduct? The difference lies in the severity of the act and its effect or the potential on the business. 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:
Misconduct may include acts such as taking sick leave when you’re actually well. Additionally altering a doctors certificate to include additional time off, or having continually bad timekeeping. While misconduct is considered to be unacceptable and can result in disciplinary action, it is not sufficiently serious to justify instant dismissal. Length of service, or other mitigating factors come into account. ( for more information on unfair dismissal process, click here)
Examples of gross misconduct
Examining general areas of gross misconduct at work, could include:
Fraud, theft, dishonesty, inappropriate gains
- stealing petty cash, unauthorized borrowing, false claims
- taking office supplies for personal use outside of work. Taking stationary home for your kids, large amounts of photocopying. (school books, manuals for partner, running own business)
- stealing from colleagues, going through their lockers, access their locked desk.
- fraudulently claiming expenses
- making gain from industrial espionage, selling or passing on customer leads, manuals, price list.
- falsifying work documents, implying you’ve done all the work. Coping a colleagues work and claiming it as your own
- using work premises for fraudulent or personal use. Maintenance of your car in their workshop. private parties in work premises.
Physical violence and offensive behaviour
- fighting and physical assault. Including threats or implied of physical harm.
- bullying to the extreme. Or bullying and you knew it was deliberate.
- harassment, sexual or otherwise. Sex discrimination, racism and mistreating employees with disabilities or are more vulnerable.
- rape, sexual assault, sexualized social media activities
- intimidating and threatening behaviour
- acting in an overly aggressive manner
- horseplay that may lead to injury or damage of items in the workplace. Sexual type comments with double meanings.
Gross negligence and breaching OH&S laws and policies
- not wearing the required safety and protection clothing
- not handling dangerous chemicals with sufficient care
- removing safeguards from equipment
- not safeguarding pregnant employees or those at greater risk in the workplace. (employees with disabilities). Deliberate non consideration of older employees, or young employees who are inexperienced or lack training. and it was known. (particularly if it was lead to a injury or physiological damage.
- Isolation breaches of machinery (very common)
Willful damage to the workplace or items in the workplace
- acts of gross negligence that lead to damage, such as stacking crates in an unsafe, unchecked manner, and
- acts of willful damage, such as arson, driving trucks dangerously.
- Forcing employees to undertake tasks knowing they were unsafe or will cause harm.
Serious misconduct related to alcohol, drugs and related behaviors
- being incapable to work due to intoxication or being under the influence of drugs, but still turned up
- taking drugs at work
- buying or selling drugs at work.
- Have strangers turning up at work to buy or you suppling drugs. (transactions in carparks, out the front). More commoin than most people realize. This in itself creates dangerous circumstances of criminal behaviour. With criminals now coming to the workplace.
Being drunk or under the influence of drugs at work could also lead to other categories of gross misconduct such as physical violence or negligence of health and safety.
Damage to the business
Any of these acts of gross misconduct could cost the business money, damage its reputation as a good employer and honest business, and lead to legal action. The employer is entitled to protect their business. all of the above can lead to instant dismissal, misconduct dismissal or serious / gross misconduct dismissal.
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
Fair Work Regulation 1.07 defines serious misconduct. Serious misconduct is conduct that is willful 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
No misunderstanding what serious misconduct means
I have published the regulation so there is no misunderstanding of what it all means. Of course every workplace is different. What’s considered serious misconduct in one place may not apply in another. Serious Misconduct in 2022 Workplaces more relevant than ever before.
Conclusion; Serious Misconduct in 2022 Workplaces
I hope this posting of Serious Misconduct in 2022 Workplaces has been informative for you. 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. We are not employment lawyers, but Australia’s leading workplace representatives. Get honest, prompt advice that is free. All states, NSW, Victoria, Qld, SA, WA, Tas, ACT Any Fair work Commission matters, including unfair dismissals, workplace investigations, bullying, probation, redundancy, constructive dismissal. Whatever call us, everything is confidential.
Articles similar to serious misconduct in 2022 workplaces
Another article on serious misconduct and entitlements that may assist you, click here
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Theft is theft, click here
(this case demonstrates, serious misconduct is not straight forward)
One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.