Terminating an employee for serious misconduct

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We are often asked by employers whether or not they can summarily dismiss an employee for various reasons ranging from persistent poor performance to blatant disobedience.  Termination on this basis is also referred to as ‘termination without notice’.

To summarily dismiss an employee:

• the employee must have committed an act of serious misconduct; and
• the employer must afford the employee procedural fairness.

What is serious misconduct?

The Fair Work Act 2009 (Cth) (Act) defines serious misconduct in section 12 as having the meaning prescribed by regulations. Regulation 1.07(2) of the Fair Work Regulations 2009 (Cth)(Regulations) define serious misconduct as including:

• wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
• conduct that causes serious and imminent risk to the health or safety of a person; or
• conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business;
• the employee, in the course of the employee’s employment, engaging in:
  • theft;
  • fraud; or
  • assault;
• the employee being intoxicated at work; and
• the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

Examples of actions by employees that amount to serious misconduct

Below are some examples of conduct by employees which have been held to satisfy Regulation 1.07(2):

• Regulation 1.07(2)(a) – wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment, such as:
  • sending emails to clients of current employer about your new business venture that will be competing with business of employer;
  • using a company car without authorisation or without a drivers licence;^[2]
• Regulation 1.07(2)(b) – conduct that causes serious and imminent risk to the health or safety of a person, such as:
  • failure to cooperate during training program^[3]
  • using a mobile phone whilst driving for employment purposes;^[4]
  • failure to follow safety guidelines re operation of machinery;^[5]
• Regulation 1.07(2)(c) – conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business, such as:
  • Employee threatening to complain to the media about the Employer without first addressing complaints to Employer;^[6]
  • Employee providing confidential information to a Union that is subsequently leaked to media;^[7]
• Regulation 1.07(2)(d) -an  employee, in the course of employment engaging in:
  • Theft;
  • Personal use of company IP;^[8]
  • Fraud;
  • Assault;
  • Violent attack of a colleague;^[9]
• Regulation 1.07(2)(e) – Intoxication at work
  • Consuming alcohol to the degree that the employee is so impaired that they are unfit to be entrusted with their duties or with any duty that they may be called upon to perform;^[10]
• Regulation 1.07(2)(f) – the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment. Examples include:
  • Academics refusing to teach certain classes;^[11]
  • Failing to return defective equipment for repair;^[12]
  • Failing to show up to appointments and meetings.^[13]

Procedural fairness

After identifying conduct by the employee that may amount to serious misconduct, it is necessary to give the employee the opportunity to respond to the allegations (Procedural Fairness).  So that the employee cannot claim that they were denied natural justice or Procedural Fairness, the employer must allow the employee to address the allegations, by talking steps such as:

• arranging to meet with the employee, allowing them to have a support person present;
• presenting the employee with all the facts and evidence supporting the allegations of serious misconduct;
• allowing the employee to respond to the allegations; and
• providing the employee with a letter of termination, confirming the facts and evidence supporting the finding of serious misconduct and any response the employee gave.

After providing the employee with the opportunity to respond to your allegations, provided that there is no reasonable explanation, then the employer may be able to terminate the employee for serious misconduct.

Links and further references

Cases

Applicant v Respondent [2014] FWC 3189

Bradford Pedley v IPMS Pty Ltd T/A peckvonhartel [2013] FWC 4282

Burns v Sacred Heart Mission Inc [2014] FWC 3188

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265

Glenn Howie v The Royal Society for the Prevention of Cruelty to Animals T/A RSCPA-ACT [2014] FWC 2771

Hansen v Mt Martha Community Learning Centre Inc [2015] FCA 1099

Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166

Plessas v Philip Foxman T/A Botany Building Recyclers Pty Ltd [2013] FWC 5910

Powell v Hunter Water Corporation [2012] FWA 6938

Rose v Tahmoor Coal Pty Ltd [2013] FWC 4291

Sheikholeslami v University of NSW (No.3) [2008] FMCA 35

Steri-Flow Filtration Systems (Aust) Pty Ltd v Craig Erskine [2013] FWCFB 1943

Tymoszuk v Comfortdelgro Cabcharge Pty Ltd T/As Westbus Region 1 [2013] FWC 3507

Further information about employment law for employers

As an employer, if you find yourself in a position where you consider that it is necessary to summarily dismiss an employee for serious misconduct, please contact us for an obligation free and confidential discussion.

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[2] Plessas v Philip Foxman T/A Botany Building Recyclers Pty Ltd [2013] FWC 5910 at [41]-[42].

[3] Rose v Tahmoor Coal Pty Ltd [2013] FWC 4291.

[4] Tymoszuk v Comfortdelgro Cabcharge Pty Ltd T/As Westbus Region 1 [2013] FWC 3507 at [43].

[5] Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166.

[6] Applicant v Respondent [2014] FWC 3189 at [37]-[40].

[7] Glenn Howie v The Royal Society for the Prevention of Cruelty to Animals T/A RSCPA-ACT [2014] FWC 2771 at [65].

[8] Steri-Flow Filtration Systems (Aust) Pty Ltd v Craig Erskine [2013] FWCFB 1943.

[9] DP World Sydney Limited v Lambley [2012] FWAFB 4810.

[10] Fair Work Regulations 2009 Reg 1.07(3)(b) and 1.07(5).

[11] Sheikholeslami v University of NSW (No.3) [2008] FMCA 35 at [115] – [125].

[12] Powell v Hunter Water Corporation [2012] FWA 6938.

[13] Burns v Sacred Heart Mission Inc [2014] FWC 3188.

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