Allegations of serious misconduct can be complex and carry serious consequences. It’s strongly recommended to seek advice early. Australian Workplace Discrimination Representatives are here for you.
When an employee is dismissed, it’s often due to either poor performance or misconduct. The reason for a dismissal matters because it affects what entitlements and notice the employee is owed.
If an employee is terminated for serious misconduct, their employer is not required to provide notice of termination. However, the employee must still be paid for all outstanding entitlements, such as wages for time already worked, accrued annual leave, and sometimes long service leave—depending on the applicable state or territory laws.
If the employee has completed the minimum employment period, and the dismissal isn’t based on a valid reason, they may be eligible to lodge an Unfair Dismissal Application with the Fair Work Commission. The minimum employment period is:
Allegations of serious misconduct can be complex and carry serious consequences. It’s strongly recommended to seek advice early. Australian Workplace Discrimination Representatives are here for you.
When an employer dismisses someone for misconduct, they need to be able to justify their decision with clear and factual evidence. It’s not enough for an employer to simply believe they had a valid reason—the Fair Work Commission will consider the facts and determine whether the misconduct actually occurred on the balance of probabilities.
Importantly, how similar past misconduct by other employees has been handled may be relevant. For example, if others were only warned for using their phones during work hours, but one person was dismissed for the same behaviour, this inconsistency may undermine the validity of the dismissal.
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Serious misconduct is behaviour that is:
It also includes conduct that puts others’ health and safety at serious risk, or harms the employer’s reputation or business. Examples include:
If an employee is terminated for serious misconduct, it’s considered a summary dismissal—meaning they receive no notice pay. However, some employers misuse this label to avoid paying notice. The Fair Work Commission will always assess whether the dismissal was fair and proportionate to the alleged behaviour.
This assessment follows what’s known as the Briginshaw principle: while the standard of proof is the "balance of probabilities," more serious allegations require more convincing evidence. The Commission won’t accept vague, uncertain, or weak proof for serious allegations.
Can you be fired for something that happens outside work hours? Generally, no—unless it has a real impact on the employment relationship.
Even if the conduct involves criminal charges, it may not justify dismissal unless it's clearly connected to the employee’s work or employer’s interests.
Physical violence or fighting in the workplace is usually grounds for summary dismissal. This type of behaviour can justify immediate termination and is unlikely to be considered harsh, unjust, or unreasonable.
However, context matters. Factors like self-defence, provocation, the employee’s work history, and whether they held a leadership position can all be relevant in how the Commission assesses the dismissal.
Under the Fair Work Act, conduct that affects the health, safety, or welfare of other employees can justify termination. This doesn’t have to be intentional or malicious—careless actions that put others at risk may still warrant dismissal.
Managers and supervisors are often held to higher standards due to their responsibility to set an example.
