December 9, 2019

Serious misconduct meaning

Updated: 27 January 2022

Serious misconduct is a common ground for termination of an employee.

But, not every employer classifies serious misconduct correctly. 

For this reason, it’s important to know what it means and if you have a valid reason to dismiss an employee for conduct that is in fact classed as serious misconduct. 

What is serious misconduct ?

Serious misconduct is defined in section 1.07 of the Fair Work Regulation.  

Serious misconduct is conduct that is wilful or deliberate and that is inconsistent with the continuation of the employment contract.

It is also conduct that causes a serious risk to the health and safety of a person or to the reputation, viability or profitability of your business, so its a reasonable ground for termination. 

Serious misconduct includes: 

  • theft
  • fraud
  • assault, intoxication at work and;
  •  the refusal to carry out lawful and reasonable instructions in the employment contract.

No notice needed

Also, you don’t need to give the required week's notice per the Fair Work Act (restated below) if there is serious misconduct. 

Notice Period Fair Work

and the notice period above increases by 1 week for someone that's worked 2 continuous years.

Proportionate response

It's important that the dismissal is proportionate to the employee's conduct. 

So you'll want to make sure the employee’s conduct is in fact serious misconduct.

Otherwise, Fair Work may deem the dismissal as disproportionate or harsh. Fair Work may make this finding if the employee applies for unfair dismissal. 

The standard of proof - Bringshaw test

In this case, we are talking about a civil standard of proof on the 'balance of probabilities' that the employee’s conduct was in fact serious misconduct. For this test, we look at the Briginshaw test.

Here’s the key test for proof in Briginshaw v Briginshaw:

'The standard of proof 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.'

As always, get advice if you are in doubt before you dismiss an employee.

About the author 

Vivian Michael

As founder and lawyer at Michael Law Group, Vivian advises Australia's top entrepreneurs on business and employment matters. Clients benefit from Vivian's commercially focussed and pragmatic legal advice, business experience, and commitment to deliver the best quality business legal services to her clients.

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