Terminating Employment for Serious Misconduct

What is serious misconduct? Is it swearing at work or being drunk? Can an employer decide what the term means in their workplace?

If an employee engages in misconduct that is so serious, you might believe it is quite legitimate to terminate their employment immediately. However, tread carefully, as there are some key steps to follow first.

On becoming aware of the issue, immediately arrange a meeting with the employee and advise them they are able to have a support person present at that. Also have your own witness present at the meeting.

  1. At the meeting, present all the facts and evidence to the employee that surrounds the alleged misconduct.
  2. Allow the employee to respond to the allegations and explain their actions.
  3. After the employee has responded to the alleged misconduct in writing, write a letter or email to the employee confirming the facts of the alleged misconduct and also confirming their explanation. State that you will consider (or have considered) all the evidence and made a decision regarding the employee’s employment.
  4. Should you decide that after considering the statements made, evidence gathered and taking into account company policies, culture and practice to terminate the employee without notice you must formalise this in writing providing the reasons for termination.

Whilst investigating you may need to suspend the employee, on full pay.

Serious misconduct under the Fair Work Act Regulations 2009 includes:

  • wilful or deliberate behaviour by an employee that is inconsistent with the employment contract;
  • conduct that causes serious and imminent risk to the health and safety of a person, or the reputation, viability or profitability of the employer’s business; 
  • theft;
  • fraud;
  • dishonesty;
  • assault;
  • intoxication to the point that the employee cannot perform their work; and
  • failing or refusing to follow a reasonable and lawful direction that is consistent with the employment contract.

Employers must take steps to ensure that the actions that have occurred justify summary dismissal and it's not always simple. And if the dismissal is thought to be unfair the employee may be able to make an unfair dismissal claim requiring you to reinstate or compensate them.

To minimise the risk, contact us to ensure you have followed sufficient process and to discuss whether the misconduct issue justifies immediate dismissal.

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