The Basics of Serious Misconduct and What Employers Must Do

Serious misconduct is a term that has a specific meaning under the law in relation to workplace matters. It covers conduct such as theft, fraud, assault, being intoxicated at work to the point where duties cannot be performed safely or behaviour that creates serious and imminent risk to health and safety or to the reputation, viability or profitability of the business. It must usually be wilful or deliberate, rather than a one-off mistake or poor performance.

For an employer to rely on serious misconduct, they need to prove that the conduct actually occurred and that it was of the type that meets the legal definition. This generally requires evidence such as witness accounts, documents, CCTV or financial records. Mere suspicion or hearsay is not enough. They also need to show that the conduct was intentional or reckless and that it posed a genuine risk or caused real damage, not just inconvenience.

Even where the conduct appears serious, the Fair Work Commission expects procedural fairness. The employee must be told the allegations, given a chance to respond, and have that response properly considered before any decision is made. The Commission does not accept an employer’s label of “serious misconduct” at face value. Instead, it examines the evidence and asks whether a reasonable employer could have dismissed the employee in those circumstances. If the conduct is overstated, unproven, or the process was unfair, the dismissal can still be found to be harsh, unjust or unreasonable.