On many occasions our clients have asked whether they can dismiss an employee on grounds of serious misconduct. Although the law is quickly evolving the foundations to serious misconduct and summary dismissal remains the same.
Past case law establishes that serious misconduct justifying summary dismissal will only be established if the employee’s is of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer/employee. Furthermore, isolated conduct usually would not suffice. However, an action which is destructive to the relationship of good faith and confidence between an employee and employer will be considered by the Court on its facts.
The Victorian Supreme Court has recently dealt with a case of summarily dismissal on grounds of serious misconduct in the case of Davies v State of Victoria [2012] VSC343. In this case Mr Davies was a disability support worker who was employed by the Department of Human Services for a period of 15 years. On one occasion, a patient had urinated on himself whilst sleeping naked and Mr Davies attempted to guide him to the bathroom to cleanse him. The patient, still naked, fell down in the corridor and Mr Davies could not lift him with his own strength hence dragged him 1.5 metres to the bathroom where the patient could stand up with the assistance of cupboards. The dragging caused an abrasion to the patient which was not reported.
The Department of Human Services considered Mr Davies’ actions constituted serious misconduct and therefore summarily dismissed him from his employment. The Victorian Supreme Court agreed. It was held that Mr Davies conduct was a breach of various codes of conduct and human right standards and the action of dragging his patient in itself was degrading in character. As a consequence of Mr Davies breach of the Department of Human Services codes of conduct, Mr Davies was unsuccessful at trial.
Feel free to contact us for a free consultation on (02) 9262 5495 or (03) 8899 7870; visit our Website; Like our Facebook Page; or join our Employment Law Mailing List.
This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.