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Have you been terminated for serious misconduct? Are you querying whether your conduct
really amounts to serious misconduct that warrants summary dismissal? If you are having
doubts or queries regarding your termination or dismissal, please contact 1300 766 700 for a
free and confidential discussion.
If an employer dismisses an employee for serious misconduct, the employee is summarily
dismissed and will receive no notice pay and potential long service leave. However, some
employers’ may label conduct as serious misconduct in order to avoid paying out certain
employee entitlements or to avoid paying out a redundancy. This begs the question, does an
employees conduct or reason for their termination really deserve the label “serious
misconduct” and can an employer get away with not paying notice or long service leave?
Is my conduct serious misconduct?
Fair Work Regulation 1.07 defines serious misconduct as conduct that is wilful or deliberate
and that is inconsistent with the continuation of the employment contract. This conduct may
also be conduct that causes a serious and imminent risk to the health and safety of a person or
to the reputation, viability or profitability of the employer’s business. Examples of serious misconduct include theft, fraud, assault, intoxication at work and the refusal to carry out
lawful and reasonable instructions.
When will my conduct constitute serious misconduct and meet this high bar to warrant
summary dismissal? Where serious misconduct is alleged the test for a valid reason for
dismissal does not change. The test remains whether the reason was ‘sound, defensible or
well founded. The standard of proof for serious misconduct remains the balance of
probabilities but ‘the nature of the issue necessarily affects the process by which reasonable
satisfaction is attained and such satisfaction ‘should not be produced by inexact proofs,
indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or
circumstances pointing with a wavering finger to an affirmative conclusion.
Is your alleged conduct an isolated incident or a single mistake in which your dismissal
would be arguably harsh? Are you even guilty of this alleged misconduct or do you have a
justifiable defence for the allegations against you? If the alleged misconduct was an isolated
incident in an otherwise faultless career, you may be eligible to lodge an unfair dismissal
claim as your termination may be considered harsh in the circumstances. Where an
employee has been dismissed without notice (summary dismissal) for serious misconduct the
Commission may find that, although there was a valid reason for the dismissal, the dismissal
was harsh because summary dismissal was a disproportionate response.
In Michelle Rawson v Mudgee Golf Club Ltd, the applicant was summarily dismissed for
serious misconduct involving three primary incidents which involved, a threat to stab a
fellow employee, alleged disrespectful behaviour towards a fellow employee and an
allegation that the applicant had attempted to delete the employer’s Facebook account.
This misconduct was considered by the employer in the context of the view that it had
formed about the applicant’s dishonesty.
Upon careful analysis, the employer’s findings of serious misconduct have been confirmed.
The misconduct of the applicant which involved her unreasonable and aggressive workplace
behaviour combined with conduct that intentionally sought to damage the business operation
of the employer, was held to be misconduct that was plainly inconsistent with the
continuation of employment and it established valid reason for the dismissal of the applicant. However, the valid reason for dismissal was assessed by the Commission and evaluated
against significant procedural errors which were evident in the manner that the employer
determined and implemented the dismissal of the applicant. Commissioner Cambridge held that although the applicant was dismissed for valid reason involving her serious misconduct,
the significant procedural defects evident in respect of the determination and implementation
of the dismissal of the applicant have rendered the summary dismissal to have been harsh and
unreasonable. The applicant’s dismissal had been found to have been unfair in this instance.
In Scott Tracey v BP Refinery (Kwinana) Pty Ltd, a BP Kwinana Refinery employee who, in
September 2018, created a video using scenes from the German-language film Downfall,
adding subtitles which referenced details known to those participating in negotiations for the
refinery’s new agreement. The employee was terminated and the original decision found the
video was “offensive an inappropriate”. On appeal, the Full Bench found there was no valid
reason for dismissal as it did not consider the video to be offensive or inappropriate in the
circumstances. The Full Bench took into account the employee’s unblemished work history,
the industrial environment in which the conduct occurred, the employee’s contrition and the
significant financial hardship on the employee’s family.
These cases illustrate that although your employer may allege that your conduct constitutes
serious misconduct and is worthy of summarily dismissal, your dismissal may still be harsh,
unjust or unreasonable due to a myriad of mitigating factors. If you wish to discuss your
particular and unique situation, please contact 1300 766 700 and we can assist you in
assessing your eligibility to lodge an unfair dismissal claim and protect your reputation.
Avoiding Redundancy and COVID-19
The COVID-19 pandemic has had a major impact on business across the globe. An
increasing number of companies are implementing restructures and redundancies to cut
business costs and maintain afloat. Nevertheless, redundancy payouts can be a costly ordeal
for businesses and some employers may be looking for reasons to avoid paying out your
redundancy. Employees receive redundancy pay based on their continuous period of service
with their employer. This is stipulated under s.119(2) of the Fair Work Act 2009 (Cth).
This means employees with notable lengths of service, may cost an employer a significant
amount of money should they decide to make that employee redundant. Employer’s may then
look at how they can cut costs further and avoid these necessary redundancies.
So now ask yourself, has your employer been making redundancies yet you are being
terminated for misconduct, poor performance or serious misconduct? Do you deserve the
sack or is there more to the story that your employer has not considered? Has your employer
dismissed you in what seems rushed and unfair? If you wish to discuss your particular and
unique situation, please contact 1300 766 700 and we can assist you in assessing your
eligibility to lodge an unfair dismissal claim and protect your reputation.
Employer’s Avoiding Paying Notice on Termination
When an employee is terminated on the grounds of serious misconduct, the employer doesn’t
have to provide any notice of termination. Thus, by labelling the reason for termination as
serious misconduct, an employer does not have to pay the employee in lieu of notice. The
minimum entitlement to notice period is stipulated under the NES (please see Figure 1). If an
employee is aged 45 years and over, and has completed at least 2 years of continuous service,
that employee is entitled to an extra 1 weeks’ notice. Your employment contract may stipulate
a notice period greater than the NES Minimum but nevertheless, this is not payable upon
termination for serious misconduct.
However, the employer does have to pay the employee all outstanding entitlements such as
payment for time worked, annual leave and sometimes long service leave. Please note this is
only a guide and the Fair Work Commission does not deal with entitlement related matters.
For detailed knowledge regarding your final pay out, please contact the Fair Work
Ombudsman. However, if you believe you have bene dismissed unfairly in an attempt to
avoid paying out your entitlements, please contact 1300 766 700 for a free and confidential
discussion.
Long Service Leave and Serious Misconduct
A common component of an employee’s termination pay is long service leave. However,
state specific legislation dictates that if an employee is terminated for serious misconduct,
long service leave can be withheld and not paid out to the employee on termination. All states
except Victoria withhold any pro-rata long service leave entitlement if the employee has been
dismissed for serious misconduct prior to reaching the period of service when they are able to
take the leave. To find out your long service leave entitlements in your particular state, please
consult the State specific legislation or the Fair Work Ombudsman. However, if you believe
you have been dismissed unfairly in an attempt to avoid paying out your long service leave
entitlements, please contact 1300 766 700 for a free and confidential discussion.
By Gary Pinchen
