Have you been dismissed from your employment for alleged misconduct? If so and the conduct (even if proven) does not amount to `serious` misconduct then you may have a claim for unfair dismissal.

If serious misconduct can be established it is, on the face of it, a valid reason and termination can occur without the requirement to provide notice. This is qualified by the employee having actually committed an act of 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.`  Serious misconduct is generally defined as a `disregard of the essential conditions of a contract where it is destructive of the relationship between employer and employee’.

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.


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


An employee is considered to be intoxicated if his faculties are, by reason of being under the influence of intoxicating liquor, so impaired that the he/she is unfit to be entrusted with the employee’s duties or with any duty that employee may be called upon to perform.

It has been determined that a single act of drunkenness at an after work function which did not involve any abusive or aggressive behaviour and for which no serious risk to the reputation or viability of the employer’s business could be established, would not represent misconduct that provided a sound defensible and well-founded reason for dismissal.

If you have been dismissed from your employment for alleged misconduct then you may be able to make a claim for Unfair Dismissal.  In the Fair Work Commission there is a Limitation period of 21 days to lodge an application from the time of termination.  A late application can only be made with the approval of the Commission and an explanation will be required.

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.

NOTICE: This article is accurate at the time of publication and does not constitute legal advice. Please see our legal notices page for more information.