What constitutes serious misconduct” for the purpose of testing a summary dismissal and for that matter an unfair dismissal?.
Regulation 1.07 of the Fair Work Regulations 2009r.1.07 provides that serious misconduct has its ordinary meaning and then provides that such meaning includes certain matters as follows;
“(1) …
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes
each of the following:
(a) the employee, in the course of the employee’s employment,
engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) …
(5) …”