Misconduct

There are various degrees of behaviour which fall under the general description of ‘misconduct’

Misconduct in employment can be at two different levels:

  1. misconduct – behaviour justifying a warning, and
  2. serious misconduct – behaviour justifying summary dismissal.

What is misconduct?

The term ‘misconduct’ usually implies unacceptable or improper behaviour done willfully with the wrong intention. Tribunals have generally determined that misconduct involves something more than mere negligence, an error of judgement or innocent mistake. Whether a course of conduct is regarded as misconduct is determined by the nature of the conduct and not from its consequences.

What is serious misconduct?

Serious misconduct is labelled ‘serious’ because it can have the effect of destroying or undermining the relationship of trust and confidence between an employee and employer. Without this trust and confidence, an employment relationship can’t continue.

The Fair Work Regulations 2009 (Cth) define serious misconduct as:

  • 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 and safety of a person, or the reputation, viability or profitability of the employer’s business;
  • (in the course of employment) engaging in theft, fraud, or assault;
  • being intoxicated (alcohol or drugs, other than prescribed drugs) at work
  •  refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

Misconduct or serious misconduct

Examples of behaviour that may be considered either misconduct or serious misconduct are set out below. Whether the behaviour complained of is actually serious misconduct will depend on the facts of each case, including the employee’s explanation of the incident. This must be explored during a fair investigation and disciplinary process. ​​​​​​

Misconduct Serious Misconduct
  • Using inappropriate language
  • Internet misuse
  • Minor instances of failing to follow an employer’s reasonable and lawful instruction
  • Minor breaches of the employment agreement e.g. inappropriate clothing
  • Lateness
  • Violent behaviour
  • Bullying
  • Harassment
  • Theft or fraud
  • Behaviour that endangers the health and safety of the employee or others
  • Use of illegal drugs at work
  • Dishonesty

Managing misconduct

Learn more about how to deal with misconduct and serious misconduct. ​