What are examples of serious misconduct in a workplace?

Some actions by an employee in the workplace may be forgivable, while others are so severe that they justify dismissal. These serious offenses are known as serious misconduct. A key characteristic of serious misconduct is that it undermines or disrupts the relationship between the employee and employer.

Serious misconduct is a plausible reason for termination of employment. While minor misconduct can be rectified with a warning, grave misconduct might lead to a dismissal. While the employee is protected from being arbitrarily terminated from work without valid reasons, serious misconduct such as posing a threat to the health and safety of other workers, theft, fraud, or sexual harassment are some examples of serious misconduct within the job sphere.

If you think you have been unfairly dismissed at work, you can reach out to professional work advisors like A Whole New Approach to discuss your option. Still sceptical about this topic? Keep reading to understand some case examples of serious misconduct within the Australian workplace.

Serious misconduct and summary dismissal

Misconduct in the workplace can either be general or serious. One of the consequences of serious misconduct in the workplace is instant dismissal without pay. However, the dismissed employee is still entitled to be paid any entitlements still owing to them. For instance, their annual leave and in some cases their long service leave.

The consequences of a summary dismissal for serious misconduct may seem harsh. That’s why it is important to ensure that if you are dismissed for this reason, your misconduct was sufficiently serious to justify your dismissal.  There have been many clear examples of serious misconduct dismissals brough before the Fair Work Commission that upon investigation were not that grave. Serious misconduct is not an excuse for employers to play God and dismiss employees at will.

The gravity of the misconduct is measured by the irreparable damages it does to either the employer or co-workers. If an employee is drunk and loses concentration in his job, causing him to fatally injure himself or other workers, then it is serious misconduct.

What is serious misconduct?

For behaviour to be considered serious misconduct, it must meet the criteria outlined in the Fair Work Act 2009. Serious misconduct can include behaviour that:

• Was deliberate and inconsistent with the continuation of the employment contract.
• Caused a serious and imminent risk to the health and safety of colleagues or other people present at the time.
• Caused a serious and imminent risk to the employer’s reputation or financial position.
• Consisted of theft, fraud or assault.
• Consisted of refusing to adhere to a reasonable and lawful direction.
• Consisted of being intoxicated or impaired. That is, as a result of consuming alcohol or illegal drugs, thereby making the employee incapable of performing their work.

Here is how a dismissal based on serious misconduct can be considered fair:

• The employer genuinely believed that the employee had committed the misconduct.
• The employer showed that they had reasonable grounds for believing this.
• Before concluding, the employer showed that they have carried out a reasonable investigation.
• The employer provided the employee with a chance to respond to the allegation in the case of an accusation.

Examples of serious misconduct in the workplace

1. Rankin v Marine Power International PTY Ltd (2001) VSC 150 at (239)

One of the cases that exemplify serious misconduct is the arbitrary dismissal of Mr. Rankin by his employer following a rise in project costs. Mr. Rankin had been working as a director of the company and as General Manager of Business Development Asia at the time of his termination of employment. He was managing a vital project in China at that time. Mr. Ranki was dismissed with notice following multi-million dollar blows outs to the cost of the project.

In his defence, the employer justified the termination following the failure of the employee (Mr. Rankin) to comply with instructions from the employer. This was in relation to managing the capital works, failure to inform his supervisors in time about the increased costs of construction. Also, a failure to apply for a revised budget when the cost increase became clear.

Despite having been dismissed, Mr. Rankin went on to attend a company opening to which he had been invited with his wife. This was even after being instructed by his employer not to do so. Hence, he was dismissed without notice.

The case was dismissed by the supreme court of Victoria as Mr. Rankin’s action even though they have shown negligence for his job didn’t warrant dismissal as it was not that serious. The employer was ordered to pay $169,612.35 as damages. [1]

2. Laws v London Chronicle (indicator newspapers) Ltd (1959) 1 WLR 698.

This case exemplifies whether an act of disobedience can warrant summary dismissal or be termed a case of serious misconduct. The plaintiff Miss Jean Maude Lavs was employed by the Defendant company, London Chronicle (Indicator Newspapers) Limited, on the 28th of May 1956 as an advertising representative.

There had been an incident when a visitor had behaved badly due to being drunk. The visitor had requested to be accompanied out of the room by the plaintiff and another employee. Even though the MD had asked them to stay back in the conference room, she went out with the guest- Mr. Delderfield.

Ms Lays was however sacked after leaving the conference room where she had been asked to remain by the managing director. She had gone on to sue for unfair dismissal. The Court of Appeal held that “although disobedience to a lawful order is misconduct, it may not be sufficiently serious to justify summary dismissal.”

3. Torres v Commissioner of Police [2017] NSWIRComm 1001 (20 January 2017)

One of the many conducts that could be termed serious misconduct in the workplace includes bullying. This was exemplified by this case. George Torres was formerly employed as a Senior Special Constable by the respondent, (the Commissioner of Police), in the Security Management Unit which provides security to several government facilities such as Parliament House. He was dismissed on the 4th day of January 2016 following allegations of sexual harassment and bullying.

In his application to the Fair Work Commission, Mr. Torres denied many of the allegations. But he acknowledged “that at times he has made inappropriate jokes in the workplace and sincerely apologizes to those he has offended. The Applicant however stated that it was part of the culture within his workplace and has been for many years, and he has never been reprimanded concerning such behaviour”.

At the end of the findings, it was discovered that the misconduct of the applicant was extremely serious. He had displayed a complete disregard for the feelings of his coworkers, especially the young female officers who were the target of his sexual harassment and bullying.

The Fair Work Commission took into account the evidence referred to above and the mitigating factors put forward on behalf of the applicant. It was then determined that the dismissal of the applicant was neither harsh, unreasonable nor unjust. Hence, the applicant’s claim for Relief with Unfair Dismissal was dismissed.

4. Bridge v Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits [2021]

In this unfair dismissal case, the Fair Work Commission determined that there was a valid reason for the employee’s dismissal due to serious misconduct. However, it also concluded that the employee had been denied procedural fairness, and as a result, the dismissal was deemed unfair.

The employee was a store manager for Globe Bottleshops who had a complaint made against him. A customer had alleged that the manager had asked a customer “would you like a r**t?” The manager was laughing at the time. And he had swiftly corrected himself, saying to the customer “receipt.”

Globe Bottleshops launched a workplace investigation into the incident. And the company stood the manager down, asking him to respond to the allegation of sexual harassment. The manager’s first written response to the allegation was deemed insufficient by the employer. So he requested access to the CCTV footage of the incident. This was, however, denied by Globe Bottleshops. And as a result, the manager did not submit a second written response.

The manager was then dismissed for serious misconduct. At his unfair dismissal hearing, the Fair Work Commission found that there was a valid reason to dismiss the manager for serious misconduct. This was because, in addition to asking the inappropriate question to the customer, he had a history of customer complaints against him for similar behaviour.

However, the Fair Work Commission found that the employer’s workplace investigation was “procedurally disastrous.” The manager was not given the chance to respond properly to the allegation. Namely, because he was denied access to the CCTV footage. He also was not interviewed by his employer about the allegation. And the employer had already decided that the manager was guilty of sexual harassment prior to the workplace investigation taking place.

The Fair Work Commission therefore awarded the manager $3,000 in compensation. This was based on the assumption that he would have worked at the bottle shop for two more weeks (if the investigation was properly conducted).

5. Graham v Walker Australia Pty Ltd t/a Tenneco [2017] 

This unfair dismissal case involved a paint gun operator who was dismissed for serious misconduct. However, he contended that it was simply an accident. The employee was responsible for spraying paint on the exhaust systems of cars. When the incident occurred, he had entered the spray paint booth and then tested the paint gun. This resulted in spraying paint into the factory, which hit a co-worker on the back and neck.

The employer launched a workplace investigation into the incident after the co-worker lodged a complaint. The investigation determined that the employee had been taking part in ‘horse play.’ And that he had therefore deliberately sprayed his co-worker. He was subsequently dismissed for serious misconduct, and thereafter made an unfair dismissal claim.

But despite claiming it was simply an accident, the Fair Work Commission did not agree with the employee. It found that his behaviour amounted to serious misconduct. And that a summary dismissal was justified.

The Fair Work Commission came to this decision based on several key pieces of evidence. Namely, that when the paint hit the co-worker, the employee was seen quickly trying to recalibrate the settings on the paint gun. This was deemed as behaviour that a reasonable person would not partake in following an accident.

The Fair Work Commission also heard that the employee had failed to consider safer options for testing the paint gun, such as pointing it in a different direction, away from the co-worker.

The employee had argued that his dismissal for serious misconduct had been particularly harsh as he had been working for his employer for over 18 years. But this fact worked against him at his hearing. The Fair Work Commission took into account his long service and the fact that he had been using a paint gun for eight years. As such, it was found that the employee should have simply known better than to spray a colleague.

The Fair Work Commission noted that determining the intent of the employee was not necessary. Namely, because simply spraying his colleague caused significant risk to his health and workplace safety. It was merely adequate that the employee had been “reckless and indifferent” to the safety of his colleagues.

Can you be dismissed for out of hours serious misconduct?

The boundary separating work and an employee’s private affairs is often blurred. As such, sometimes it is not a straightforward to determine if an employee’s conduct outside of work hours can be used as a valid reason to dismiss them.

According to the Fair Work Commission, only in “exceptional circumstances” does an employer have the “right to extend any supervision over the private activities of employees.”

For an employer to dismiss an employee for out of hours serious misconduct, the misconduct in question must satisfy certain criteria. This criteria was outlined in the famous unfair dismissal case Rose v Telstra Corporation Limited (1998). It sets forth that out of hours misconduct can amount to a valid reason for dismissal when:

• When objectively considered, the misconduct is likely to seriously damage the employee-employer relationship. Or;
• The misconduct causes damage to the interest of the employer (for instance, their public reputation). Or;
• The misconduct is not compatible with the duties of the employee to the employer.

The burden of proof rests with the employer when attempting to connect an employee’s out of hours misconduct with their professional responsibilities. For instance, an employer can’t simply state that the out of hours misconduct has led to reputational damage. They must provide material evidence that they incurred reputational damage directly as a result of the employee’s out of hours misconduct.

Westpac employee fairly dismissed for out of hours serious misconduct

The unfair dismissal case Keron v Westpac Banking Corporation [2022] provides an example of when out of hours serious misconduct can lead to a fair dismissal. The case involved a Senior Relationship Manager who had been working for Westpac for 35 years.

The manager had taken part in an offsite staff workshop organised by Westpac in March 2021. Westpac had also organised a staff social event at a pub that commenced at 6:30pm, after the workshop had finished. Each Westpac employee at the social event was given a wristband. This allowed bar staff to know that they were Westpac employee and therefore entitled to free drinks.

Only half an hour into the social event, only a few Westpac employees were still at the pub. This small group continued to order drinks, paid for by themselves. The manager later told the Fair Work Commission that over the five hours he had spent at the pub, he had consumed six full strength pints. Also, four to five Canadian Club whiskeys. Those near him at the pub had described his appearance as intoxicated.

“I felt a hand grab and squeeze my crotch.”

Manager inappropriately touches colleague.

At around 9:45pm the manager was involved in two incidents, the first of which was captured on CCTV. In the first incident, the victim claims that the manager was “pointing his buttocks towards me.” And by doing so, “it seemed like he wanted me to touch or grab his buttocks.” The victim said that she simply “laughed,” then turned away to “get something off a nearby table.”

Then, the manager did something that would later see him dismissed for serious misconduct. According to the victim, as she was turned away, she “felt a hand grab and squeeze my crotch.” She said that it felt like the manager’s fingers were “pushing into my genitals.” While his thumb was “squeezing one of my buttocks.”

The victim said that this lasted for about three seconds. She froze, then turned around and saw the manager “laughing and smiling.” The victim said that “she was in shock,” before a colleague came over and said that she had seen what just happened.

“You are a wh*re:”

Manager insults female colleague.

In the second incident, a few of the remaining Westpac employees decided to go to a bar that was located in a casino. But the manager and another colleague were denied entry. As they were lined up to enter the casino, another female colleague told the security guards “do not let these guys in.”

After being denied entry, as the manager and his colleague were walking to the taxi rank, he decided to make his thoughts known to the female colleague. From about 30 metres away, he shouted “You f*king idiot. Why did you do that?” The manager then walked away and shouted “you are a whre” or “you are a b*tch. ” But then he walked towards the female colleague, repeatedly asking her why she had told security not to let him in.

The manager eventually left the female colleague alone, and later that night, she emailed Westpac about the incident.

Manager Terminated for Serious Misconduct, Faces Police Charges

After being informed of both incidents, Westpac launched a workplace investigation into the manager’s alleged serious misconduct. He soon attended a meeting about the two incidents, where he was provided with a letter that outlined the allegations made against him.

In the manager’s written responses to the allegations, he denied touching the female colleague on the buttocks. He accepted that he had called the other female colleague a “f**king idiot,” but denied using other foul language to insult her.

The manager also had the police turn up to his house and arrest him for indecent assault. He was taken to the police station and remanded in the holding cells, before attending a police interview. He was later charged with unlawful and indecent assault and provided a court date.

Ten days later, the manager was dismissed for out of hours serious misconduct. In his dismissal letter, Westpac outlined that the first allegation had been substantiated. And the second allegation had been partially substantiated. He was found to be in breach of Westpac’s code of conduct and workplace policies.

The manager subsequently made an unfair dismissal claim with the Fair Work Commission.

Fair Work Commission rules dismissal for out of hours serious misconduct valid

At the manager’s unfair dismissal hearing, he argued to the Fair Work Commission that Westpac did not have a valid reason to dismiss him. This was because both incidents took place outside of work hours and away from the workplace.

Westpac, however, argued that it was within its rights to dismiss the manager. Namely, because the manager’s serious misconduct violated its workplace policies, which apply to official staff events.
The Fair Work Commission stated that the first incident, which happened at the site of the Westpac event, took place “on the border between work-related event and private activities.” The Fair Work Commission therefore needed to work out if there was a sufficient link between the two incidents and the manager’s employment. And if this link justified his dismissal.

The Fair Work Commission stated that even if serious misconduct takes place at the location of a work-organised event, it doesn’t always provide an adequate connection with employment. However, it found that there was a sufficient connection between the first incident and the manager’s employment. This was because it took place as a result of Westpac’s staff event.

With regards to the second incident, the Fair Work Commission found that there was not a sufficient connection to the manager’s employment. This is because the incident took place far away from the location of the Westpac event. Also, because the manager was not wearing anything that could identify him as a Westpac employee.

The Fair Work Commission therefore found that the first incident gave Westpac a valid reason to dismiss the manager for serious misconduct. The manager’s unfair dismissal application was therefore dismissed. This was despite the Fair Work Commission also finding that the second incident did not provide a valid reason.

Contesting your dismissal for serious misconduct at the Fair Work Commission

From the cases above, it is easy to establish that a narrow set of criteria determines what constitutes serious misconduct. Therefore, extreme care is required on the employer’s part. When an employee is allegedly guilty of serious misconduct in the workplace, it warrants a dismissal and such a person is not eligible to receive notice of payment. This is a serious outcome for an employer to pursue, therefore it must be backed up by the facts.

As an employee, you should look out for malicious attempts by your employee to kick you out, using serious misconduct as an excuse. Investing in understanding the various examples of serious misconduct in the workplace will come in handy.

Why make an unfair dismissal claim?

If you are certain you have been unfairly dismissed, there is a provision to make an unfair dismissal claim and get due compensation. You have to act fast, however. You must make an unfair dismissal claim with the Fair Work Commission within 21 days of being dismissed for serious misconduct.

By making an unfair dismissal claim, the Fair Work Commission will decide if your employer had a valid reason for your dismissal. Also, if your dismissal was harsh, unjust or unreasonable. There are three big reasons why you should make an unfair dismissal claim with the Fair Work Commission:

1. Clear your name: Being dismissed, especially for serious misconduct, can have a damaging effect on your career prospects. Making an unfair dismissal claim can help you clear your name. Your settlement with your employer could even include them permitting you to resign and providing a reference letter.
2. Get reinstated to your job: If your unfair dismissal claim is a success, the first remedy the Fair Work Commission will pursue is your reinstatement. They can order your employer to reinstate you to the job you had prior to your dismissal. Or another job that’s not less favourable than your previous job. However, in some cases reinstatement may not be seen as viable. This can be, for instance, if the trust and confidence between you and your employer has been irreparably damaged.
3. Gain compensation: You have the potential to make your case to the Fair Work Commission. And if reinstatement is not seen as viable, you may be awarded financial compensation, which will be paid by your employer. For an indication of how much compensation you can receive, the median figure awarded by the Fair Work Commission is $8, 704.
4. Settle a score with your employer: It might not always be socially acceptable to seek revenge in today’s society. However, if your employer has provably lied in order to dismiss you for serious misconduct. Or if they have mistreated you in the process, it is only right that you fight for your rights to seek justice. And at the same time, teach them a lesson so that they do not do the same thing to another employee.

The eligibility requirements for unfair dismissal claims

To contest your dismissal for serious conduct via an unfair dismissal claim, you must meet certain eligibility criteria. As previously stated, you must make your claim within 21 days of being dismissed. You must also have been employed for at least six months. Or if you were employed by a small business (with fewer than 15 employees), you must have been employed for at least 12 months.

If you are a casual employee, the Fair Work Commission requires that your employment was “regular and systematic.” This means that you had a regular roster of shifts. And, there had to be a reasonable belief that your regular and systemic work would continue.

Not sure where to turn with your workplace issue?

At A Whole New Approach, we’re not lawyers — we’re Australia’s leading workplace advisors. We’ve helped thousands of employees with their workplace disputes and problems.

To discuss the options available in your situation and understand your employee rights, call us now for a free, no-obligation consultation. We handle a wide range of  industrial relations matters — from unfair dismissal and forced resignation to adverse actions and workplace investigations. 

Reach out now to explore your options — or give us a call on 1300 766 700.