By Bethany Silverman

Serious misconduct is a term used quite often in the context of employment and disciplinary action; however, many employers don’t actually know what type of behaviours constitute serious misconduct. Whilst most employers know that serious misconduct can result in instant dismissal, it is important for you to understand what serious misconduct looks like.

Put simply, serious misconduct can be described as actions which are inconsistent with the continuation of one’s contract of employment. However, this behaviour must be wilful and deliberate, as stated in the Fair Work Regulations.

 So, what actions would normally constitute serious misconduct? Any actions which cause serious and imminent risk to the safety and health of a person or the reputation, profitability or viability of the employer’s business fall within the definition of serious misconduct. This may include:

  • Theft;
  • Fraud;
  • Assault;
  • Being intoxicated at work;
  • Refusal to carry out a lawful or reasonable instruction consistent with their contract of employment.

Although this seems like a clear cut, black and white definition, employers must understand that in some cases, the employee may be able to show that the conduct engaged in was not unreasonable, or that mitigating circumstances may be relevant.

What happens when you suspect an employee has engaged in serious misconduct?

Time and time again, employers believe that an employee has engaged in behaviours which constitute serious misconduct, and on that basis, decide to terminate the employee on the spot.

Although serious misconduct may result in dismissal, you must actually establish that the employee engaged in the conduct. This involves undertaking an investigation and gathering evidence. Sometimes it may be a very black and white situation, for example, where an employee punches another employee, they admit to it and have no reasonable explanation and it was caught on CCTV footage. However, other times, it may be more complex, and you will need to engage in an in depth investigation to ensure that you are satisfied with the evidence before proceeding with any disciplinary action or termination.

Throughout this process, it is important to ensure that you follow procedural fairness. If the conduct is severe enough, it may be reasonable to suspend the employee on full pay pending the outcome of the investigation.

Once you have investigated, and are satisfied that you have sufficient evidence to prove that serious misconduct has occurred, you will need to have a meeting with the employee to discuss the matter. It is recommended that you allow the employee the opportunity to bring a support person. Keep in mind that it may take a day or two for the employee to arrange a support person You may also bring a support person, for example a HR manager to act as a witness.

In this meeting, you should present the facts to the employee and allow them to respond. Many businesses make the mistake of failing to allow the employee an opportunity to respond, and instead immediately terminate based on the outcome of the investigation. However, it is important to allow the employee to respond, as there may be reasonable explanation for their actions.

What is a reasonable excuse?

The question of what is a ‘reasonable excuse’ for serious misconduct can be a fine line to distinguish for employers. Employers should consider any extenuating or mitigating circumstances that may have caused the employee to engage in the misconduct. For example, an employee may have experienced a sudden loss in their family, causing them to lash out in an aggressive manner, or may have had a change in medication resulting in mood disturbances or erratic behaviour.

This was the case in decision from the Fair Work Commission (‘FWC’), which found that although there was a valid reason to terminate an employee who sent abusive, profanity laden text messages to his colleagues, it was ultimately unfair, as the employee had recently lost a family member, was struggling with severe depression and mental health issues which resulted in him drinking excessively, weakening his anti-depressant medication, The FWC also considered the employee’s otherwise unblemished record, and noted his prompt apology the following day and ordered that he be reinstated.

How serious is ‘serious misconduct’?

Although you might have the evidence to prove an employee has engaged in serious misconduct, you also need to assess the severity of the offence. Whilst it may fit the definition of serious misconduct on face value, it is important to consider whether it is serious enough to warrant termination, or whether perhaps a warning is more appropriate. This involves assessing any intention, explanations offered by the employee, whether the employee apologised and shows remorse.

Bethany Silverman is a qualified Workplace Relations Consultant at HR Assured. She regularly engages businesses in matters of compliance and best practice. She has a particular interest in the performance management process.