This is an extract from an unfair dismissal case in which the Fair Work Commission identified the distinction between misconduct and serious misconduct.
“A termination of employment may occur by way of a summary dismissal where there is the exercise of an election by the employer to terminate the employment contract in response to a repudiation of the employment contract by the employee, constituted by a breach of an essential term, a serious breach of a non-essential term, or conduct on the part of the employee manifesting an intention not to be bound by the contract in the future. In my view, the Applicant breached an essential term of his employment contract, placing the Respondent in a position to elect to terminate the contract effective 4 November 2022. It follows that I have considered poor performance was not in issue. Instead, the Applicant’s conduct of unilaterally changing his place of work and scope of duties, and his reticence to work in the Nannup bakery notwithstanding instruction to do so, is better characterised as misconduct.”
Bailey v TC TL VU Nguyen Pty Ltd T/A Nannup Family Bakery (2023) FWC 304 delivered 6 April 2023 per Beaumont DP