Have you been dismissed from your employment for alleged misconduct?

If an employer can establish serious misconduct, they have a valid reason for termination.

The employer can then fire the employee without notice.This action depends on the employee actually committing the misconduct.

To be able to rely on that right and to pay the employee up to the time of dismissal only, rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but also prove it.  It is important to remember that events discovered after a termination for serious misconduct may subsequently form part of the initial decision to terminate for serious misconduct.

 Serious misconduct includes:

• 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 or safety of a person; or
  • the reputation, viability or profitability of the employer’s business.

 The conduct includes each of the following:

1. The employee in the course of the employee’s employment, engaging in theft; fraud, or assault.
2. The employee being intoxicated at work.
3. The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

The above will not constitute serious misconduct if the employee can show that `in the circumstances, the conduct was not conduct that made employment in the period of notice unreasonable.Authorities generally define serious misconduct as a ‘disregard of essential contract conditions’ that destroys the employer-employee relationship.

Inappropriate language

In the workplace inappropriate language will ordinarily not be serious misconduct unless it is repeated and is/or part of some objectionable conduct.

Fraud

An employer must establish that fraudulent conduct has occurred for it to constitute serious misconduct.

Intoxication

An employee is intoxicated if liquor has impaired their faculties to the point of being unfit for duty.

Drunkenness at an after-work function is not a valid reason for dismissal if it involves no aggression or serious risk to the employer’s business.

If dismissed for alleged misconduct, you can claim Unfair Dismissal.

The Fair Work Commission has a 21-day limitation period. This period starts from the time of your termination.

You must lodge your application within this time. Late applications need Commission approval and an explanation.

If you would like to know more, get in touch with us at Whitelaw McDonald for an informal no obligation chat to learn your rights. Call us today at our Central Coast office (02) 4343 7000 or Newcastle office (02) 4941 8999.