Terminating an employee for serious misconduct

 Terminating an employee for serious misconduct


It is likely that at some stage, an employer will be required to deal with `serious misconduct’ behaviour by an employee. In practical terms, it means the employee displaying behaviour that is totally inappropriate and therefore jeopardising the ongoing employment relationship. The likely outcome is termination.

What does `serious misconduct’ by an employee look like?

The Fair Work Regulations at 1.07 (2) provide a useful guide as a starting point.

The Regulations define `Serious Misconduct’ as including:

(a)    wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

 (b)  conduct that causes serious and imminent risk to:

                              (i)  the health or safety of a person; or

                             (ii)  the reputation, viability or profitability of the employer’s business.

The Regulations state that serious misconduct includes the employee, in the course of the employee’s employment, engaging in theft, fraud or assault, being intoxicated at work or the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

With regard to intoxication,  an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

It should be noted that some industries such as building/construction and mining where safety is at the forefront, many businesses will have policies that mandate zero tolerance towards alcohol or drug consumption or positive testing. The Fair Work Commission has consistently upheld challenges to dismissals where employees have breached such requirements.

When faced with allegations of any of these behaviours, it is imperative that the employer afford the employee procedural fairness by undertaking a fair and impartial investigation involving the employee and prior to making a final decision, genuinely considering any mitigating factors that may impact on the decision to terminate.

Director or Manager queries, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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