Unfair dismissal, breaches of policies and misconduct

“Wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. In North v Television Corporation Ltd,  39 Franki J stated:

“It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.”

The decision of Laws v London Chronicle (Indicator Newspapers) Ltd, referred to above, makes it plain that an act of disobedience or misconduct (justifying summary dismissal) requires that the disobedience must be also be ‘wilful’:

“… I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.”

In Buitendag v Ravensthorpe Nickel Operations Pty Ltd, 40 Le Miere J made the following observation at [48]:

“The defendant [the employer] bears the onus of establishing the serious misconduct. The applicable standard of proof is on the balance of probabilities, but both commonsense and authority dictate that findings of serious misconduct should not be made lightly: Carter v Dennis Family Corporation 41 [46] (Habersberger J).”

Morcos v Serco Australia Pty Ltd (2019) FWC 7675 delivered (2019) FWC 7675 delivered 21 November 2019 per Bull DP