Misconduct Investigation – employers are often required to conduct investigations into the misconduct of their employees, at times the behaviour of the employee may constitute serious misconduct.

Misconduct Investigation – Serious Misconduct

Under the Fair Work Act, an employer can instantly terminate an employee’s employment, where the employee has engaged in ‘serious misconduct’.  In such circumstances, the employer will have to establish that the employee has in fact engaged in serious misconduct; and the employer will still need to follow a certain procedure to afford the employee procedural fairness

The Fair Work Regulations defines ‘serious misconduct’ as:

  • Willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
  • Conduct that causes serious and imminent risk to:
    • The health or safety of a person; or
    • The reputation, viability or profitability of the employer’s business.

The Regulations also list the following conduct as being deemed serious misconduct:

  • The employee, in the course of the employee’s employment, engages in theft, fraud or assault;
  • The employee being intoxicated at work;
  • The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

It is important for employees to be careful when dismissing an employee for serious misconduct to ensure that the alleged behaviour or misconduct reaches the threshold of ‘serious misconduct’.

The recent case of Dai v The Camberwell Grammar School t/a Camberwell Grammar School was an example of where this did not occur. In this case,  the applicant was employed at an independent boys’ school.  She was dismissed for failing to attend meeting concerning previous complaint against respondent.  She notified the school she could not attend the meeting on the day because she was unwell.

Commissioner Ryan considered if there was a valid reason for dismissal in that a valid reason is sound, defensible or well-founded not capricious, fanciful, spiteful or prejudiced.

Commissioner Ryan found that the dismissal harsh, unjustified and unreasonable, that the applicant had a clear reason for not attending the meeting, furthermore to characterise the non-attendance as serious misconduct was egregious.  The commissioner found that  the school imposed a completely unjust outcome on applicant, the dismissal was unfair. At the time of publication consideration was to be given to remedy.

Misconduct Investigation – Serious Misconduct – Lesson for employers

  • Investigate matters of employee misconduct thoroughly
  • Get advice if you are unsure
  • Balance any decision against all of the circumstances
  • Do not make rash decisions

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations



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