What is Serious Misconduct? What is Unfair Dismissal?

For those who are reading this article to learn more about Unfair Dismissal Remedy Applications with Fair Work Australia, we outline some fundamental definitions which you should be familiar with.

Serious Misconduct includes, but is not limited to the following actions:

  • wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
  • conduct that causes serious and imminent risk to:
    • the health or safety of a person; or
    • the reputation, viability or profitability of the employer’s business;
  • engaging in theft, fraud or assault;
  • being intoxicated at work; and
  • refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

Unfair dismissal occurs where a dismissal from employment is harsh, unjust and/or unreasonable:

  • harsh because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;
  • unjust because the employee was not guilty of the misconduct on which the employer acted; and/or
  • unreasonable because it was decided on inferences which would not reasonably have been drawn from the material before the employer.

There are over 10,000 unfair dismissal remedy applications a year. The definitions above are to only be used as a guide and rapidly change as Fair Work Australia decisions are handed down. Feel free to contact us for a free consultation on (02) 9262 5495 or (03) 8899 7870; visit our WebsiteLike 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.