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What Counts as Serious Misconduct in the Workplace?

What Counts as Serious Misconduct in the Workplace?

Serious misconduct in the workplace can be difficult to manage and may result in termination. Find out here what behaviour amounts to serious misconduct.

26th June 2019
Reading Time: 2 minutes

As an employer, you need to monitor the conduct of employees in the workplace. As an employee, you have to abide by all standards set out in fair work laws. However, there may be times where these are breached. Sometimes, this is tantamount to serious misconduct. Given the various types of workplaces, it can sometimes be hard to pinpoint what counts as serious misconduct.

In this article, we’ll explain what serious misconduct is and when it is grounds for termination.

Legal Definition

Firstly, the Commonwealth legislation Fair Work Regulations 2009 under the Fair Work Act 2009 (Cth) states that serious misconduct amounts to:

  • Firstly, wilful or deliberate conduct by an employee that is inconsistent with the continuation of the contract of employment.
  • Secondly, 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.

Secondly, the following issues may also be present:

  • Theft
  • Fraud
  • Assault

The most important aspect to glean from all of this is that the conduct must be wilful and deliberate. Simple negligence does not amount to serious misconduct.

Fair Work Ombudsman Definition

According to the Fair Work Ombudsman website, serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. Examples include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business, theft, fraud, assault, or refusing to carry out a lawful and reasonable instruction that is part of the job.

Consequences of Serious Misconduct

If an employee is guilty of serious misconduct, you may be able to terminate them. You will need to draft a termination letter stating why you are letting them go. In addition to this, if harm has resulted due to the serious misconduct, you may be entitled to pursue the former employee in the Courts. This can happen if the misconduct has caused financial loss, or where damage has been done to the reputation of your business.

Furthermore, if you don’t believe the conduct warrants termination of employment, there are other ways you can solve the problem. Managing employee conduct and issuing warnings can help you maintain an open dialogue between employers and employees. However, they should be issued in writing, such as a formal warning letter. This creates a workplace conducive to both productivity and civility. It also gives employees the opportunity to improve giving them a second chance.

No workplace is the same, and some standards may vary across trades. However, fair work legislation puts forward very clear guidelines on what can amount to serious misconduct in the workplace. If you are still unsure about the situation of an employee, it may be wise to consult an employment lawyer for advice.

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Paul Taylor

Paul is an intern at Lawpath, and is currently studying a combined Arts/Laws degree with a major in criminology at Macquarie University. Paul has an interest in legal tech, which complements his broader interest in cyber crime/security and the way in which it is changing the world.