Termination for Serious Misconduct| Fairwork Online

Termination for 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:

1. The employer will have to establish that the employee has in fact engaged in serious misconduct; and
2. The employer will still need to follow a certain procedure to afford the employee natural justice.

What is Serious Misconduct?
The Fair Work Regulations define 'serious misconduct' as follows:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
(b) conduct that causes serious and imminent risk to:
      (i)  the health or safety of a person; or
      (ii) the reputation, viability or profitability of the employer's business.

The Regulations also list the following conduct as being deemed serious misconduct:
(a) the employee, in the course of the employee's employment, engages in theft, fraud or assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

What is the next step?
Once you have established that an employee has engaged in serious misconduct, and you wish to terminate that employee's employment, there are some important steps you must first take.

1. Immediately arrange a meeting with the employee, and advise the employee that they are able to have a support person present at that meeting.  You should also have your own witness present at the meeting.

2. At the meeting, present all the facts and evidence to the employee that surrounds the alleged misconduct.  This may involve notes taken from interviews that you had with other employees or clients who may have seen what took place. 

3. You must then allow the employee to respond to the allegations and explain their actions, whether it be in that meeting, or to provide you with a written explanation at a later point in time.

4. After the meeting (or 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.  You should then state that you will consider all the evidence, and make a decision concerning the future of the employee's employment based on that evidence.

5. If, after considering all the evidence (including statements given by witnesses), and after considering the employee's explanation, you come to the conclusion that the employee has in fact engaged in misconduct, you may then be able to terminate the employee without giving them any notice.  This must be done in writing, and you should always give reasons as to why you are terminating the employee.

Some further tips you should consider are:

  • After the meeting, the employee should also be immediately suspended from duty and escorted from the premises – this will act as a risk management process to protect the business' tangible and intellectual property
  • The time taken by an employer to 'consider' all of the evidence immediately prior to making a decision should be between 1-3 business days, depending on the circumstances.

By strictly following the above steps, your business will be in a strong position to defend any possible unfair dismissal application made by the former employee after termination.


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