Home' Australian Automotive Aftermarket Magazine : Australian Automotive Aftermarket e-Zine - Feb 14 Contents 56 AUTOMOTIVE AFTERMARKET MAGAZINE FEBRUARY 2014
The conduct of an employee can be so bad in some
circumstances that they can be dismissed immediately.
But it is extremely important that employers understand when
an employee’s misconduct warrants immediate termination so they
don’t become subject to a possible unfair dismissal claim.
Serious (or gross) misconduct is where an employee conducts
themselves is a way that is so bad it is ‘inconsistent with the
continuation of the contract of employment’.
In other words, the employee has acted in a way that makes it
impossible for them to continue working in your business.
The Fair Work Act 2009 and its regulations provide some helpful
examples of what could constitute serious misconduct.
Theft, fraud, assault, intoxication and verbal abuse are all likely
to be considered serious misconduct.
Serious misconduct can also occur where an employee causes
serious and imminent risk to the health and safety of a person or the
reputation or viability of the business.
In short, it is likely to be a situation of serious misconduct if the
employee risks, threatens or causes actual harm to themselves, other
people or the business while at the workplace.
The Fair Work Act 2009 also states that where the employee
refuses to carry out a reasonable and lawful direction issued by the
employer (i.e. where an employee unreasonably refuses to do their
job), this may be serious misconduct.
How should an employer respond to serious misconduct?
In most cases of potential serious misconduct, something severe
will have just happened in your workplace.
Whether it’s a physical fight, an argument, a threat, stealing,
drunken behaviour, sexual misconduct or ignoring an employer’s
directive, emotions are likely to be high.
One of your primary obligations is to ensure the health and safety
of all people at the workplace.
If someone is threatening the safety of others, they need to be
removed from the workplace immediately.
Tell the employee to go home for the day.
If you do not believe the employee will be able to get home safely,
call a taxi.
The police should be called when the employee won’t go home
or leave the workplace and still poses a threat.
In other situations of possible serious misconduct, it is
acceptable to send the employee home while you consider the
It is recommended that you do not terminate the employee while
emotions are high.
Send the employee home and take the time to consider the
You are essentially ‘standing the employee down’ with pay until
you have had time to seek some advice and consider your options.
Deciding whether to terminate the employee
It is extremely important to seek advice before you decide
whether to immediately dismiss an employee on the grounds of
Unfortunately, there is no way to be certain whether the conduct
of an employee amounts to serious misconduct or simply poor
conduct requiring performance management.
There have been many situations where Fair Work Australia has
found an employee’s dismissal for serious misconduct was actually
deemed to be an unfair dismissal on the part of the employer.
Always act on serious misconduct
Keeping an employee who may have committed serious
misconduct may put your business and employees at risk.
Other employees may feel uncomfortable or threatened around
the employee and you may no longer be providing a safe and healthy
While nobody enjoys firing anyone, sometimes it is the only
decision to be made in the circumstances.
Seek advice if you are unsure. Like all matters involving poor
conduct, you need to act.
Decisions need to be made quickly, but not on a whim or in the
heat of the moment.
It is important that all terminations, including terminations for
serious misconduct, are performed carefully, reasonably and after
What is serious misconduct under the Fair Work Act?
AAAA Employer Assist provides all members with information and
advice on all employment matters, including serious misconduct
and termination. Contact the team on 1300 735 306 to discuss
any employment issues that arise in your business.
We look forward to hearing from you.
Gwen McIlroy and the AAAA Employer Assist team
AAAM FEB TRADE 2014 - FINAL:AM MAGAZINE SHELL 5/2/14 12:27 PM Page 56
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