Serious Misconduct can be defined as any conduct that includes willful or deliberate behaviour inconsistent with the continuation of the employment contract and causes imminent and serious risk to the health or safety of a person or the reputation, viability or profitability of the business. It may include the employee, in the course of the employee’s employment, engaging in theft, fraud, or assault, the employee being intoxicated at work, or refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
What to do?
When terminating an employee for serious misconduct, there is no singular approach – each situation has to be assessed on a case-by-case basis. Ensure that you investigate the case thoroughly, discuss the misconduct with the employee or parties involved to avoid making assumptions on the issue, consider all your options by seeking professional advice immediately before any action is taken, and if need be, draft and provide the employee with a letter of termination.
As Termination for Serious Misconduct is a complex issue, it is advisable to always seek legal advice before any action is taken. An employer should take extreme care as instant dismissal gives the employee the greatest opportunity to sue for unfair dismissal. For instance, failure to give the employee the opportunity to a fair hearing and respond to an allegation may make the dismissal unfair. There are strict guidelines and cut off dates to lodge a complaint with Fair Work Australia.
It is important that any allegation of serious misconduct is investigated thoroughly and fairly, and that any allegations are substantiated by reference to clear evidence before an employer terminates an employee’s employment summarily for serious misconduct.
Employees whose employment is terminated summarily will still be entitled to payment in relation to their outstanding annual and long service leave entitlements. Always keep records of all misconduct occurrences, meetings, and the process to coming to a decision.
If you need further advice in relation to Employment Law or Serious Misconduct, here at The Quinn Group our team of experienced lawyers is able to assist you in handling such complex matters. For more information submit an online enquiry or call us on 1300 QUINNS (784 667) or on +61 2 9223 9166 to book an appointment.
