ARTICLE · 14 OCTOBER 2012

Serious misconduct and dishonesty in employment

Kott Gunning

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Understandably, there is no clear definition of "serious" or the degree of misconduct which justifies summary dismissal.

AustraliaEmployment and HR

Elise Croft (Previously With Kott Gunning)

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Introduction

The Fair Work Act 2009 ("FWA") and the Fair Work Regulations ("FWR") provide the framework within which employees may allege that, amongst other things, their employer has taken adverse action against them or dismissed them unfairly.

One of the most common situations in which such claims are made is when an employee has been "summarily dismissed" (dismissed without notice) on the basis of serious misconduct. In such circumstances the employee often claims that:

there was some other (unjustifiable) reason why they were dismissed, or
there was no serious misconduct and therefore, as a result of the decision to summarily dismiss, the employer is in breach of the employment contract.

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