Many workers are sacked for serious misconduct, but some don’t know what it means, or what their rights are.
Employers often accuse workers of serious misconduct when they have breached a minor company policy.
Therefore, in some instances, a worker who has been fired might be eligible to file an unfair dismissal claim.
Serious misconduct rights
According to the Fair Work Act, serious misconduct is conduct that is wilful or deliberate and inconsistent with the continuation of the employment contract.
It is also conduct that causes serious and imminent risk to the health and safety of a person.
And finally, it also includes conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business.
- intoxication at work; and
- refusal to carry out a lawful and reasonable direction.
Dismissal can still be unfair
If an employer dismisses a worker without notice for serious misconduct, the Fair Work Commission might still find the dismissal unfair.
This is because, although the employer might have a valid reason for dismissal, the dismissal might be disproportionate to the conduct.
Employers must have strong evidence if they intend to dismiss a worker for serious misconduct.
One person’s word against another may not meet the test of strong evidence.
Breach of company policy
Many employers believe that a breach of company policy constitutes serious misconduct, however, this is not always the case.
Despite this, a substantial and wilful breach of a policy will usually constitute a valid reason for dismissal.
However, this does not mean the Commission will still find the dismissal harsh, unjust or unreasonable in some cases.
Out of work hours conduct
The Commission says an employer can involve themselves in a worker’s private activities, in exceptional circumstances only.
The out of hours conduct concerning an employer must have a relevant connection to the employment relationship.
Send messages and photos to work colleagues out of hours, or posting work-related comments on social media accounts, constitutes such conduct.
Industrial Relations Claims can assist workers who have been unfairly dismissed or accused of serious misconduct.
Workers have just 21-days from the date of dismissal to file a claim, so don’t delay!
Please call our team at Industrial Relations Claims today on