It’s no brainer that when an employee engages in serious misconduct and they get caught, their employment will be terminated without giving it too much thought. One would think that the process should be relatively straightforward when compared to other types of dismissals, but why is it that employers still end up trying to battle an unfair dismissal or a general protection claim? That’s because most of the time, the correct process is not followed!

What is Serious Misconduct?

The Fair Work Act 2009 defines ‘serious misconduct’ as;

When an employee:

  • Causes serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business or
  • Deliberately behaving in a way that is inconsistent with continuing their employment

Some examples of serious misconduct are theft; fraud; assault; discriminatory conduct; harassment; being intoxicated at work; refusing to carry out lawful and reasonable instruction that is consistent with the employee’s contract of employment; failure to observe safety and specified work practices to just name a few.

Misconduct occurs, so what’s next?

When an employee engages in serious misconduct, the first thing their employer needs to do is establish that the employee has in fact engaged in serious misconduct. Some offences will be black and white, however with most, it’s advisable that a thorough investigation takes place to ensure that the employer is satisfied with the evidence on hand before moving down the path of termination. Either way, the employer will still need to follow a process to afford the employee with procedural fairness. Depending on the severity of the misconduct, whilst investigating, the employee should be suspended on full pay. This is advisable to ensure that a safe work environment is provided to other employees.

Once the employer has gathered all the evidence and is satisfied with the results of the investigation, it will then need to arrange a meeting with the employee to discuss the matter in person. It is highly recommended for the employer to offer the employee the option to have a support person present at that meeting if they wish. The employer will also need to be mindful that the employee may need time to arrange for a support person to attend the meeting. In some instances, this could take a couple of days. During this meeting the employer should also be accompanied by their HR representative to have a witness present.

The meeting day

During the meeting, the employer will need to present all the facts and evidence surrounding the alleged misconduct to the employee and then allow the employee a chance to respond to the allegations, explaining their actions. Unfortunately, many businesses make the same mistake of not allowing the employee to respond when it comes to serious misconduct. Just like any disciplinary action, with serious misconduct, an employee should be given the chance to respond as there could be a valid reason for their action. Once the employee has had the chance to explain their actions, the meeting should be adjourned for the employer to consider all the evidence. If the meeting needs to be adjourned for an extended period, it is advisable for the employer to provide the employee a letter (or email) confirming the facts of the alleged misconduct and the employee’s explanation. The letter should also state that the employer will consider all the evidence and decide concerning the future of their employment based on the evidence. It is advisable a decision be made no later than 1-3 business days.

Final verdict

After considering all the evidence, if the employer decides that the employee has in fact engaged in misconduct, a final meeting will need to be arranged to terminate their employment. Once again, the employee may wish to bring a support person to the final meeting and it’s advisable for the employer to be accompanied by a HR representative. Given that this warrants a summary dismissal, the employer will not be required to provide notice or make payment in lieu.

As an important risk management step, it is advisable that once the final meeting is wrapped up, the employee be escorted from the premises so that business’ tangible and intellectual properties be protected.


This article is prepared to only provide general information about the topic. It is not intended to be used as advice in any way.

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