Employers use the term “serious misconduct” far too often in the workplace.
It may have been said to you during a termination, or when your employer threatens your employment. Employers can terminate or dismiss you for serious misconduct. You will not be entitled to your usual entitlements if you leave your job. But what is serious misconduct? We answer your questions around this topic.
If you are wrongly dismissed for serious misconduct, your rights to annual, long-service leave and notice periods will be terminated. In the event that a company is downsizing or restricting, any redundancy payments you might have been due for the alleged serious conduct will also be terminated.
Employers know they can reduce the cost of terminating your employment by stating that it was due to’serious misconduct’. However, this could be wrong and they could unlawfully deprive you of all your rights. This method is often used by employers in difficult times and situations to reduce their wages and lower their payroll.
It is important to determine if your dismissal was due to’serious misconduct’, or simply for misconduct.
What Is the definition of serious misconduct?
An employer may hold an employee to account for serious misconduct in instances where:
- An employee’s wilful or intentional behaviour that is not consistent with the continuation of their employment contract.
- An employee’s conduct poses a serious and imminent danger to:
- The safety or health of a person.
- The reputation, viability and profitability of the employer’s company.
The Fair Work Commission decisions make it clear that employers must meet very high standards to prove serious misconduct by employees. Below are just a few examples.
- Theft
- Verbal or physical assault
- Fraud
- Workplace intoxication or abuse of illicit substances
- Blatant disregard for reasonable and lawful orders
Although this is not an exhaustive list, it can give you an idea of whether your misconduct is similar to a common mishap at work or more serious against the employer.
This blog is a result of the incredible number of employees who search this phrase / word in our advertising campaigns. Employers will do whatever is necessary to reduce costs and avoid redundancy in these difficult economic times. If you are disqualified for any reason, it can be a career stumbling block or a barrier to obtaining another job. This needs to be rectified.
Code of Conduct and Serious Misconduct
The article has been reedited as of 21/12/2021. This is due to the high number of Xmas party season enquires, dismissals, and the fact that this year it seems especially high. I believe that employees are happy to be outside, despite the fact that various states have been released from lockdown. There’s nothing wrong with that. I’m not the fun cop. If you aren’t careful, however, established codes of conduct apply. Sexual harassment, drunkenness, and offensive behaviour can all lead to termination for serious misconduct.
The stress from the pandemic, lockdowns and stress have taken a toll on many people. Managers and supervisors are cranky, lack a sense humor, and in some cases, behavioral issues, jokes, and innuendo that were tolerated in the past are no longer acceptable. Be careful.
Companies, people, and their employees have changed a lot since the COVID lockdown of nearly two years. Some are better than others, while some are worse. Companies are more careful about their spending than ever before. If a company can fire you for serious misconduct it does not need to pay notice. Long service leave is also not available and bonus payments are often void or forfeited.
Can my employer withhold entitlements when sacked for Serious Misconduct?
An employer must pay the employee’s annual leave and long service leave if the employee is not required to work out the notice in almost all cases. Howver, an employer may withhold certain rights, such as the payment in lieu notice and long-term leave, if an employee has been terminated due to serious misconduct. Refer to is my emloyer robbing me of my entitlements to understand more.
Sacked For Serious Misconduct?
If you feel you were sacked unfairly for misconduct contact our team. We are not workplace lawyers, but we are Workplace Advisors providing support to employees in fighting for justice. With no win no pay options available, we will fight your unfair dismissal claim with the reduced financial pressures. We are experts and winning is in our DNA. Call today on 1800 333 666.
Sources: Serious Misconduct – Fair Work Regulations 2009
Article of Interest: Small Business Dismissial Code & Workplace Investigations
