Unfair dismissal; what is serious misconduct?


This is what the Fair Work Commission’s unfair dismissal benchbook says about what is meant by the term “serious misconduct”.
“Serious misconduct”

Fair Work Regulation 1.07 defines serious misconduct.327 Serious misconduct is conduct that is wilful or deliberate and that is inconsistent with the continuation of the employment contract.328 It is also conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business.329

Serious misconduct includes theft, fraud, assault, sexual harassment, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract.330

Where serious misconduct is alleged the test for a valid reason for dismissal does not change. The test remains whether the reason was ‘sound, defensible or well founded’.331 A valid reason for dismissal does not require conduct amounting to a repudiation of the contract of employment.332

Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response.333

Where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw334 may be relevant: 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’335 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.’336

The Briginshaw principle does not raise the standard of proof beyond the balance of probabilities.337 The strength of the evidence needed to establish a fact on the balance of probabilities ‘may vary according to the nature of what it is sought to prove’.338 More serious allegations may require stronger evidence.”