It can often be confusing for an employer when assessing if an employee has engaged ‘serious misconduct’ and if it is therefore appropriate to dismiss them from their employment without notice.

In this blog, we clarify what is most important for an employer to consider in determining that an employee has engaged in serious misconduct.

The law

The Fair Work Regulations 2009 (Cth) (Regulations) contain the definition of serious misconduct as it applies under the Fair Work Act 2009 (Cth), which is conduct engaged in by an employee that includes:

1. Wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;
2. Conduct that causes serious and imminent risk to:
   1. the health or safety of a person; or
   2. the reputation, viability or profitability of the employer’s business.

The Regulations also conveniently provide examples of serious misconduct includes, that being:

• Theft;
• Fraud;
• Assault;
• Sexual harassment;
• Intoxication at work; and
• Refusing to carry out a lawful and reasonable instruction that is consistent with that employee’s contract of employment.

While an employee may have engaged in conduct of a type listed above, an employer should be wary of determining that serious misconduct is therefore committed.

Recent decision

The recent Fair Work Commission (FWC) decision in Tamuka Matongorere v Serco Australia Pty Ltd [2022] FWC 1504 (’Matongorere’) is a good reminder to employers on what needs to be considered when determining if misconduct by an employee amounts to serious misconduct.

While an employer must be satisfied that the misconduct occurred, it was held in Matongorere that simply relying on the Regulations is not necessarily determinative as to whether the threshold of serious misconduct is met.

Further, in citing the decision in Briginshaw v Briginshaw (1938) 60 CLR 336, Matongorere held that the standard of proof that applies is the balance of probabilities, “with the more serious the allegation, the higher the burden on the Respondent to prove the allegation”. This means that where the threshold of serious misconduct is in question, dependent on the seriousness of the allegations of misconduct, an employer may have to achieve a higher burden in proving those allegations.

Key takeaways and other considerations

Even though the principles reflected in Matongorere is stated in the context of unfair dismissal proceedings in the FWC, an employer should nonetheless apply this principle of the burden of proof when looking to satisfy itself of serious misconduct actually occurring.

If an employer is satisfied the misconduct occurred, an employer will also need consider the circumstances of the employee and the circumstances in which the conduct occurred before deciding on the appropriate outcome. This can affect whether it is appropriate to dismiss an employee without notice, or whether it is appropriate to dismiss the employee at all. For example, an employee (Employee A) may engage in the physical assault of another employee (Employee B), although Employee B directed aggressive personal insults at Employee A over a sustained period of time resulting in Employee A having a ‘brain snap’ causing the assault. In this hypothetical scenario, considering all the circumstances of Employee A’s conduct it may not necessarily be appropriate dismiss without notice or dismiss at all.

Notwithstanding the above, a final point to note is that an employer must still observe procedural fairness, including but not limited to a formal investigation into the allegations and meetings with the employee to discuss the allegations, prior to reaching any decision on whether the serious misconduct has occurred and what outcome is appropriate for the employee.

We hope this has provided a helpful reminder to you of what to consider when faced with the prospect of dealing with serious misconduct allegations.

Please do not hesitate to contact us if you would like advice on the above.

Tamuka Matongorere v Serco Australia Pty Ltd [2022] FWC 1504