Key Points:
Serious misconduct discovered after termination can be
used to justify summary dismissal and may result in the employer
justifiably withholding certain statutory and contractual
entitlements.
A recent decision by the NSW Court of Appeal's decision is a
timely reminder that employees, particularly those in executive
positions, must fulfil their contractual and statutory obligations.
Failure to do so may amount to serious misconduct, entitling the
employer to dismiss the employee summarily and potentially
withholding contractual entitlements, including bonuses.
In Downer EDI Limited v Gillies [2012] NSWCA 333, the Court of
Appeal overturned a decision by the Supreme Court which saw a
former executive awarded more than $7 million in damages. President
Allsop (with whom Justices Macfarlan and Meagher agreed), found the
former executive had engaged in serious misconduct when he, albeit
with honest intentions, borrowed or "advanced" money from
his accrued
