Misconduct definitions

There are various degrees of behaviour which fall under the general description of 'misconduct'. This term is also defined in Reg 1.07 under the Fair Work Regulations 2009.

 
 
There are various degrees of behaviour which fall under the general description of ‘misconduct’, ranging from employee behaviour justifying a first warning to behaviour justifying summary dismissal. The common law has long recognised that where an employee is guilty of a serious act of misconduct the employer does not have to provide the employee with the period of notice of termination and may forfeit certain entitlements normally due on termination of employment.

For example, an employee’s dishonesty may constitute misconduct and a valid reason for dismissal. However, dishonesty does not automatically make the dismissal of an employee one that is not unfair. A single foolish or dishonest act may not always, in the circumstances of a particular case, justify summary dismissal. See APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230 (8 August 2011)McDonald v Parnell Laboratories (Aust) [2007] FCA 1903 (7 December 2007).
 
Definition of ‘serious misconduct’ — Fair Work Act
 
This term is defined in Reg 1.07 under the Fair Work Regulations 2009 to mean:
  • 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 and safety of a person, or the reputation, viability or profitability of the employer’s business
  • theft
  • fraud
  • assault
  • the employee being intoxicated (alcohol or drugs, other than prescribed drugs) at work
  • the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
Meaning of ‘misconduct’
 
The Courts have generally determined that ‘misconduct’ involves something more than mere negligence, error of judgement or innocent mistake. Both in law and in ordinary speech the term ‘misconduct’ usually implies an act done wilfully with a wrong intention, and conveys the idea of wrongful intention. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences. It has also been said to mean ‘wrongful, improper or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts’. See O’Connor v Palmer and Others (No.1) (1959) 1 FLR 397; Pillai v Messiter (No.2) [1989] 16 NSWLR 197; de Leon v Spice Temple Pty Ltd [2010] FWA 3497 (6 May 2010).
Notice of termination
 
Under s123 of the Fair Work Act, an employer is not required to give the appropriate period of notice of termination under the Act where an employee is dismissed for ‘serious misconduct’. Although not specifically addressed by the Act, an employer would be required to pay up until the time of dismissal only in this circumstance, unless there is a provision to the contrary under the applicable modern award or enterprise agreement.
 
Summary dismissal
 
For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is first necessary for the employer to establish that it did in fact hold the belief as a matter of fact that:
  • the conduct was by the employee;
  • the conduct was serious; and
  • that the conduct justified immediate dismissal.
This is to be contrasted to the provisions of s387(a) of the Fair Work Act where the Fair Work Commission, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.
 
Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding that belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquiries or investigations were made to support a basis for holding that belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be.
 
Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held. See Harley v Rosecrest Asset Pty Ltd t/a Can Do International [2011] FWA 3922.
 
Proof of misconduct justifying summary dismissal at common law as a prerequisite is a sufficient but not a necessary condition to establishing a valid reason for dismissal. The existence of a valid reason for dismissal, eg serious misconduct, does not depend on consistency with requirements for termination for other purposes such as the requirements of an enterprise agreement, legislation or the common law. A valid reason is one that is sound, defensible or well-founded. If a termination is inconsistent with some other obligation, that is a factor to be considered under other criteria relevant to the overall conclusion in the matter. See Annetta v Ansett Australia [2000] AIRC 1174.
 
Single act
 
The immediate dismissal of an employee is a strong measure and it can only be in exceptional circumstances that an employer is acting properly in summarily dismissing an employee on committing a single act of negligence. On the other hand, a Court would be reticent to agree to the view that a single outbreak of bad temper, accompanied, it may be, by regrettable language, is a sufficient ground for dismissal.‘In such cases, one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded.’ See Jupiter General Insurance Co Ltd v ArdeshirBomanjiShroff (1937) 3 All ER 67
 
A single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but such single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions. The disobedience must also be wilful. See North v Television Corporation Limited [1976] 11 ALR 599; Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285.
 
Valid reason
 
The employer should not equate the concepts of‘serious misconduct’ with a ‘valid reason’. The existence of a valid reason for dismissal does not depend on consistency with requirements for termination for other purposes, such as the requirements of an award or enterprise agreement, legislation or common law. A valid reason is one that is sound, defensible or well-founded. If a termination is inconsistent with some other obligation, this is a factor to be considered under other criteria relevant to the overall conclusion in the matter.
 
A Full Bench of (then) Fair Work Australia determined that the requirement to consider whether a valid reason for a termination exists (a consideration under s387 of the Fair Work Act) does not involve different considerations for summary terminations and terminations on notice. See Magers v Commonwealth of Australia (Department of Health and Ageing) [2010] FWAFB 4385.
 
A finding of serious misconduct is a sufficient, but not a necessary condition to establishing a valid reason for dismissal within the meaning of s387(a) of the Fair Work Act. See RMIT v Asher [2010] FWAFB 1200.
 
Company policy
 
Most large employers would have company policies and procedures dealing with issues related to an employee’s behaviour in relation to their employment. Not every breach of policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for termination. See Woolworths Limited (t/as Safeway) v Cameron Brown - PR963023 [2005] AIRC 830 (26 September 2005).
Condoning misconduct
 
When a case of misconduct is brought to an employee’s attention he/she is allowed a reasonable opportunity of investigating the matter and the employer’s rights are not prejudiced by postponing action until he/she has done so. However, the employer must act as soon as reasonably practicable, otherwise the employer may be held to have condoned the behaviour. See Metal Trades Case (1942) 46 CAR 332, Tinning v Newcastle Suburban Co-op Soc. Ltd (1942) AR (NSW) 555, and Clarke and the Metropolitan Meat Industry Board (1967) AR (NSW) 16.
Criminal offence
 
The conviction of an individual for a criminal offence does not necessarily have any effect upon the person’s employment. The question of relevance of the conviction or an employee’s alleged misbehaviour to the employee’s work should be considered in terms of whether or not the employee has breached an express or implied term of their contract of employment. Whether events occurring outside the actual performance of work will be relevant to the employment relationship will vary from case to case. For example, an accountant who has committed an act of dishonesty for which he or she may have been charged and convicted in the course of some activity outside of their employment might be said to have breached their contract of employment.
 
In the case of many criminal offences, an employer will not be able to wait for the outcome of any police investigation into the alleged offence. In this situation the employer should undertake his/her own investigation, making as detailed an investigation as the resources of the employer allow. The employee must be given an opportunity to respond to any matters raised by that investigation. See Plumbers Union v BHP Co Ltd 1961 AILR; Reid v Department of Education (2000) 48 AILR; HEF of Australia v The Western Hospital [1991] 4 VIR 310.
 
Although an employee may be acquitted on police charges in criminal proceedings, the onus of proof in civil proceedings are on the ‘balance of probabilities’. The employer needs to prove that serious misconduct had occurred. See M v M (1988) 63 ALJR 108; Briganshaw v Briganshaw (1938) 60 CLR 336; Re Crestwell Industries Pty Ltd and Wang 73 IR 454; Humphries v Cootamundra Ex-Services & Citizens Memorial Club Ltd [2002] NSWIRC 225 (6 September 2002).
 
Standard of proof — criminal acts
 
The ordinary standard of proof required of a party who bears the onus in civil litigation is proof on the balance of probabilities. This remains so even where the matter involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. However, this does not affect the standard of proof. See Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938).
Dishonesty
 
The type of workplace will be relevant to whether an act of dishonesty justifies dismissal. For example, a bakery employee stealing a few bread rolls would perhaps only justify a verbal warning, while serious fraud by a bank employee would clearly justify summary dismissal. Another type of dishonesty is where an employee passes on trade secrets to a competitor. An employer should be able to prove on a high balance of probabilities that an employee is guilty of theft or unauthorised removal of property. This may require involving trained security workers and making written observations. Evidence, such as shortages in till totals, should also be tendered at tribunals to support an allegation of employee theft.
 
The employer should also put the specific allegations to the employee and advise the employee that his/her employment may be terminated if an adequate explanation is not forthcoming. See Wormald Australia Pty Ltd v Harward & Venning [1992] 44 IR 365; Electricity Commission of NSW t/a Pacific Power v Nieass & Ors [1996] 39 AILR. (Then) Fair Work Australia found that a worker who secretly took a vacation while on carer’s leave was not unfairly dismissed, because he acted in a dishonest manner that was inconsistent with his obligations to his employer. See Pearce v Nyrstar Hobart Pty Ltd [2011] FWA 1541 (10 March 2011).
 
Fraud

In circumstances where the reason for a dismissal is serious misconduct said to amount to (say) fraud, it is critical that an assessment be made as to whether, on the balance of probabilities, the employee did actually engage in serious misconduct. Although fraud is a criminal act, the standard of proof does not shift to that of ‘beyond reasonable doubt’, the standard of proof required for successful conviction in criminal matters. See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Others [1992] HCA 110 ALR 449; Brinks Australia Pty Ltd v Transport Workers’ Union of Australia AIRC PR922612.

Regulation 
1.07 of the Fair Work Regulations 2009 Regulation, further defines ‘serious misconduct’ for the purposes of s12 of the Fair Work Act. ‘Fraud’ is referred to in 1.07(3)(a)(ii) of the Regulation as an act amounting to ‘serious misconduct’.The dismissal of an employee on a ground such as fraud can have a potentially far reaching and catastrophic effect on the employee’s future employment prospects, given the connotations of criminal activity associated with such a term. The conduct of an employee should not be labelled as fraud without clear and cogent proof. See Mourilyan v James Hardie Australia Pty Ltd [2010] FWA 9672.

Fraudulent medical certificate
 
The (then) Australian Industrial Relations Commission found that an employee who manually altered the medical certificate to claim additional sick leave, and was dismissed by the employer, was guilty of misconduct and this amounted to a serious breach of an employee’s duty of honesty and constituted a valid reason for termination. See Tina Louise Sulis v Woolworths Limited [2009] AIRC 791.

Also, a Court determined that an employee who attended a football match and produced a medical certificate as proof of illness justifying absence from work, was not dismissed unlawfully because of temporary absence due to illness. See Anderson v Crown Melbourne Ltd [2008] FMCA 152. An employee, who had a plausible reason for the alteration of a medical certificate, and the employer did not carry out a proper investigation of the facts, was dismissed unfairly. The issue of the medical certificate was used by the employer as a pretext to dismissal because the employee had been on light duties. See Hammond v Australian Red Cross Blood Service – Sydney [2011] FWA 1346.

 
Drunkenness/drinking/drug taking 
 
The Fair Work Regulation 2009 (Reg. 1.07) defines the meaning of the term ‘serious misconduct’ to include an employee being intoxicated at work. An employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or in accordance with directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
 
The taking at the workplace (or immediately before coming to work or during a break from work) may well justify dismissal. Where the particular employee is required to drive or to operate dangerous machinery then summary dismissal may well be justified (in this case the employer should have a policy stating that use of drugs or alcohol before or during work will result in summary dismissal). In relation to other types of employees, progressing through a series of warnings would be more appropriate.
 
In a matter heard before the (then) Australian Industrial Relations Commission, the employee, a store manager, was terminated for consuming two beers on his lunch break. The employer had an explicit policy that no alcohol was to be consumed during work hours. It was found that there was a valid reason for his dismissal. See Selak v Woolworths Ltd [2008] AIRCFB 81.
 
In another matter, the employees were terminated after it was discovered they were drinking alcohol during their lunch break. It was found that a breach of the policy was a valid reason for dismissal. However, it was held dismissal was harsh in all of the circumstances when taking into account recent policy change, inconsistent enforcement of the policy and the employees’ period of service. See Agnew v Nationwide News [2003] AIRC PR927597; [2003] AIRCFB; Appeal dismissed [2003] AIRCFB 1056.

Not considered serious misconduct

In a matter before the New South Wales District Court it was held the employer erred in its decision to summarily dismiss a manager for a solitary occurrence of intoxication in the workplace (employer's training conference) for reasons of serious misconduct. The Court considered the following factors:
  • the length of the employee's service
  • whether the employee has been warned or disciplined for similar conduct in the past
  • the severity of the employee's intoxication and the employee's conduct
  • whether the employee's conduct affected the well-being o or safety of staff or clients, or
  • whether the employee's conduct negatively affects the employer's reputation, or relationships with clients.
See Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) [2014] NSWDC 250 (8 December 2014).
 
Employee refusing reasonable orders
 
The lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of employment and are reasonable. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, such as a modern award, governing the relationship, are taken into consideration when considering the reasonableness, or otherwise, of the employer’s direction.
 
Wilful disobedience of a lawful and reasonable instruction of the employer justifies instant dismissal. An employee is not, however, bound to obey orders to do something not properly appertaining to the character or capacity in which he/she was hired. Also, an order which involves a reasonable apprehension of danger to the person of the employee is an unlawful order and one to which the employee is justified in refusing to obey.
 
In re Barrett & Women’s Hospital, Crown Street, Sydney (1947) AR (NSW) 565 it was found that ‘… not every act of disobedience will allow an employer to summarily dismiss an employee. Some such acts or omissions may be trivial or inadvertent and without any element of wilfulness or carelessness and regard may be had to the results. But a calculated and persistent course of disobedience is never trivial and is necessarily wilful.’
 
See also Adami v Maison de Luxe Ltd [1924] HCA 45; (1924) 35 CLR 143 (19 November 1924); Hackshall Ltd v McDowell (1930) AR 620; Parker’s Case (1946) AR 1; and Iron & Steel Works Employees (A.I.& S. Ltd – Port Kembla) Awards (1954) AR 350.
 
In this situation an employer should give a written warning and make it clear that a continued refusal to obey orders will result in dismissal. Prior to issuing a written warning an employer should discuss the refusal with the employee. There are likely to be reasons for the dismissal, such as industrial action, safety concerns, a personality clash or a lack of training. Where the employee has a reasonable reason for refusing an order, such as justified safety concerns, then the employer should not dismiss the employee.
Fighting
 
Whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable.
 
The extenuating circumstances may concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he/she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he/she was acting in self-defence. See AWU-FIME Union v Qld Alumina IRCA 62 IR 385 and Fearnley v Tenix Defence Systems Pty Ltd [2000] AIRC 1348; 191/00 M Print S3557 [2000] AIRC 943Qantas Airways Limited v Cornwall [1998] 83 IR 102.
 
There needs to be clear working policy, the consideration to be placed on factors such as safety and the requirement for employers to consider any incident in context rather that strictly apply policy to incidents. See also Minic v Visy Board Pty Ltd [2000] AIRC 1446; Print S4330 [2000] AIRC 1050  and National Union of Workers v AB Oxford Cold Storage Co. Pty. Ltd. [2000] AIRC 1449; Print S4389 [2000] AIRC 1054 .
 
In re Printing & Kindred Industries Union v John Fairfax & Sons Limited NSWIRC 25 January 1980, the view was expressed that fighting at work, along with consumption of liquor at work and stealing an employer’s property constituted the classic justification for summary dismissal. This view was also adopted in Omya Southern Pty Ltd v David Leslie Noakes NSWIRC 8 March 1994.
 
Assault
 
‘Assault’ is a legal term that is defined as a form of trespass in which one person intentionally arouses in another an apprehension of imminent harmful or offensive conduct.
 
Mere physical contact is insufficient to establish either of these torts. Under the common law, commonplace, intentional but non-hostile acts such as patting another on the shoulder to attract attention and pushing between others to alight from a crowded bus are not sufficient to constitute battery if committed inoffensively. Any general principle that any touching of another person, however slight may amount to battery, is subject to a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. See McDonald v Parnell Laboratories (Aust) [2007] FCA 1903 (7 December 2007); Darby v Director of Public Prosecutions [2004] NSWCA 431. So far as assault is concerned proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact. See Rixson v Star City Pty Ltd [2001] NSWCA 265.
 
Aggressive behaviour
 
In determining whether aggressive behaviour by an employee against a fellow-employee is unsatisfactory, the Fair Work Commission views the behaviour objectively and from the perspective of whether or not a reasonable person would have found the employee’s behaviour threatening or intimidating. In considering whether an employee’s behaviour is unacceptable in a particular matter, the Commission will consider the following factors in determining whether there was a valid reason for dismissal:
  • whether there is any doubt who was the aggressor in any threatening or intimidating behaviour involved in a particular incident
  • whether there was any prospect of physical threat by the other employee (self-defence) to justify the aggressive behaviour of the dismissed employee
  • the ‘life experience’, or maturity, of the aggressor
  • whether there is evidence of a workplace culture which tolerates aggressive behaviour similar to the behaviour in the matter at hand
  • any relevant extenuating circumstances, eg medical condition.
See Hudson v Woolworths Limited [2007] AIRC 912 (24 October 2007).
Incompetence/inefficiency
 
This may constitute a valid reason for dismissal, although only the most extreme cases would ever justify summary dismissal. Where an employee is felt to be incompetent or inefficient it will usually be appropriate to proceed through a series of warnings prior to dismissal. It will be necessary to have objective and observable evidence of incompetence or inefficiency. Therefore it may be necessary to rely on performance assessment ratings. Dismissal should only occur where it is clear that the employee is not going to attain the required standards.
 
Lateness
 
The cumulative effect of lateness and uncertified absences from work by the employee can provide the employer with a valid reason for terminating the employment. See Printing & Kindred Industries Union (South Australian branch) v Collotype Labels Pty Ltd [1994] IRCA 74 (19 October 1994). Relevant factors will include the length of the absence, how often it has occurred, whether the employee informed the employer in advance of the lateness/absence, the type of workplace, ie how important it is for the employee to be on time and any reasons for the employee’s lateness/absences.
 
Lateness or unauthorised absence is unlikely to be grounds for summary dismissal, although an exception may be positions where the employee is depended on to be at work, but the employee would have to be aware that unauthorised absence would lead to summary dismissal. See also Grand United Friendly Society v F. Lerrill 1994 AILR; Rutherford v Norris Hospitals Pty Ltd 1972 AILR; AWU-FIME Amalgamated Union & Farrell v Conagra Wool Pty Ltd 1995 AILR; CSPU & Spicer v Telstra Corporation Ltd [2000] 48 AILR.
Loss of licence or qualifications
 
Many occupations require the employee to retain the necessary valid licence or qualification(s) in order to perform their designated duties. This may be a valid reason for termination of employment if it means the employee can no longer satisfy the terms of the employment contract.
 
Negligence of skilled employee
 
Where an employee works in a position that involves activities that call for a high degree of professional skill and where the consequences of even a small departure from that high standard are potentially disastrous, there are a number of circumstances which may legitimately bear upon the decision of an employer to terminate the employment of such an employee for even a small departure from these standards of care and skill. A failure to terminate employment in such cases:
  • may, given an insured’s duty of disclosure to his or her insurer, adversely impact on the insurance premiums payable by the employer or even give rise to a potential for an insurer to decline indemnity in the event of an accident giving rise to a claim;
  • may impact adversely on the employer’s reputation and thus upon its business (for example, a transport industry employer where a truck driver incurred speeding and other driving infractions); and
  • may have adverse consequences in relation to the employer’s duty of care and other obligations to fellow employees and members of the public including, potentially, exposing the employer to liability for continuing the employment of an employee in the position.
See Mihajlovski v IR Cootes Pty Ltd [2004] AIRC 173.

Offensive language
 
The use of insulting and objectionable language may constitute misconduct. The standard is not that of the dainty and genteel but the standard applying in the ‘give and take atmosphere’ of the modern workplace. If abusive language is common at the workplace its use by an employee would not normally be regarded as sufficiently serious to warrant dismissal unless it is directed at challenging the authority of a supervisor. See Mackens Law of Employment (6th Edition).
 
Prima facie, threatening another work employee is a serious issue and one which would not be tolerated in any workplace. The manner in which the threat was made and the words used provide sufficient reason for the employer to dismiss the employee on the grounds of serious misconduct. See Byrnes v Treloar NSW Court of Appeal (1997) 77 IR 332.
 
Out of hours conduct
 
A Full Bench of the (then) Australian Industrial Relations Commission considered the principles concerning out of hours conduct. Ultimately, conduct that gives rise to a material risk of damage to an employer’s interests, even if there is no actual damage in the particular case, may nevertheless be conduct that attracts the legitimate concern of the employer and may thus, depending on the circumstances, constitute conduct that provides a ‘valid or sound reason’ for termination of employment. Whether such a termination is nevertheless harsh, unjust or unreasonable, not withstanding the existence of a valid reason, will remain to be determined in all the circumstances.
 
 
A number of cases have dealt with the vicarious liability of an employer for sexual harassment that occurred away from the workplace including: Lee v Smith and Ors [2007] FMCA 59 (23 March 2007); South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130 (15 July 2005); Leslie v Graham [2002] FCA 32.
 
Depending on the nature of the employer’s business, it may be prudent have an ‘Employees’ out of hours conduct’ company policy. The following is an example of a company policy that deals with out of hours conduct by employees.
 
EMPLOYEES’ OUT OF HOURS CONDUCT
 
Policy
 
While all employees of [XYZ Pty Ltd] have a right to privacy, criminal or otherwise inappropriate conduct occurring outside the workplace and negatively impacting on [XYZ Pty Ltd], may result in a disciplinary action or a requirement that the particular private conduct cease. Examples of such conduct include, but are not limited to:
  • criminal offences such as stealing, or other dishonesty relating to cash or goods
  • violence, harassment or discrimination towards other employees of [XYZ Pty Ltd], that occurs outside of the workplace, and not during working hours.

Disciplinary action may be taken where the conduct of the employee outside the workplace.

 
 Pornographic material
 
The Fair Work Commission and various industrial courts and tribunals have determined that the dismissal of an employee who stored and/or sent pornographic and other inappropriate content by email was not harsh, unjust or unreasonable. See M Wake v Queensland Rail - PR974391 [2006] AIRC 663  ; Batterham & Ors v Dairy Farmers Limited t/as Dairy Farmers [2011] FWA 1230.
 
Refusal to attend work
 
An employee initially given provisional permission to attend a job interview, which was withdrawn days prior to the interview and told to work at usual time, was dismissed when the employee refused to attend work. (Then) Fair Work Australia determined there was a valid reason for dismissal and it was not harsh, unjust or unreasonable. The tribunal was satisfied the requirement of the employer was reasonable given the nature of the operations and the day in question. See Owen v Flemington Fields Pty Ltd t/as GKR Transport [2010] FWA 3654 (7 May 2010).
 
Theft by employee
 
For a more detailed summary of employee misconduct in relation to theft, see Theft by employee
Unsafe act by employee
 
An unsafe act by an employee may justify dismissal from employment. Such conduct falls within the definition of ‘serious misconduct’ in Reg 1.07 of the Fair Work Regulations 2009. Only in extreme cases where an employee was wilfully or grossly negligent would summary dismissal be justified. See Gottwald v Downer EDI Rail Pty Ltd [2007] AIRC 969.
 
In other instances an employer should proceed through a series of warnings culminating in dismissal if the unsafe acts continue.
 
The Fair Work Commission may take into account the following issues when determining whether there has been a breach of safety:
  • the seriousness of the breach/incident
  • company policies setting out safety procedures and consequences for breaches
  • relevant WHS training by the employer
  • whether the incident/breach was an isolated incident or recurring in nature
  • whether the employee concerned was a supervisor and expected to set an example.
 
Any unsafe act which is to be the basis for disciplinary action should be investigated by the employer. In particular, the employer should be confident the unsafe act occurred as a result of the employee’s negligence (or wilful act) and not because of any lack of safety in the system or work established by the employer. See Swift v H.E. Deipenan Pty Ltd [1992] AILR 28; Dooland v Ipec Road Express, a Transport Unit of Mayne Nickless Ltd 1996 AILR 127.
 
An employee found guilty of serious misconduct for breaching safety rules, and hence dismissed for a valid reason, after due process, could not be considered to be harshly terminated in the absence of discernable and significant mitigating factors. See Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (2 March 2011).

A miner, who was dismissed for breaching his employer’s ‘golden rule’ of safety, was reinstated by Fair Work Australia, which cited the worker’s perfect safety record, the disastrous effect dismissal would have on his livelihood and the ‘non-existent’ nature of the alleged safety risk. See Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth [2010] FWAFB 10089 (24 December 2010).
 
Facebook use by employees
 
(Then) Fair Work Australia determined in a matter that 'a Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see… It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences'.
 
A Facebook entry could be considered in a similar manner to the principle applied under ‘out of working hours conduct’. However, it should be noted that the employee’s dismissal in this matter was considered to be harsh, unjust or unreasonable. See Fitzgerald v Dianne Smith T/A Escape Hair Design [2010] FWA 7358 (24 September 2010).

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