Gross misconduct is behaviour in the workplace that is considered a serious breach of the employment agreement, an illegal or dangerous activity. If an act of gross misconduct is deemed serious enough – even for a first offence – the employee found guilty may be dismissed without notice or pay in lieu of notice.
The Fair Work Regulations define serious misconduct as behaviour that causes serious and imminent risk to the reputation or profits of the business or health and safety of another person, or is deliberate behaviour inconsistent with continuing the employment. Usually, it means theft, fraud, assault, or intoxication at work.
It is important that employers know the difference between general misconduct and serious misconduct. Even an employee dismissed without notice can submit an unfair dismissal claim. So you need documented evidence to prove the conduct was serious enough to justify the instant dismissal.
What is seen as gross misconduct in the workplace depends on the type of company, and accepted behavioural standards in that sector or industry. Choosing the right response also depends on the severity of the act and whether it negatively impacts the company’s finances, reputation or relationship with clients.
As an employer, it is vital that you can easily spot signs of gross misconduct and respond with the correct disciplinary procedure. If you make the wrong move in a heated moment you could face an unfair dismissal claim.
Here are some of the most common examples of gross or serious misconduct in the workplace:
If one of your employees carries out gross misconduct, you may have reasonable grounds to dismiss that employee without notice or pay in lieu of notice.
However, depending on the severity of the act, you may want to investigate the matter and gather evidence before you resort to immediate dismissal. By carrying out an investigation first, you can prove that you took reasonable steps to review the situation and this evidence may aide you in unfair dismissal claims.
Here are some easy steps to follow when you investigate the circumstances of misconduct:
Based on the results of the investigation you can decide whether or not to terminate an employee for misconduct. Keep in mind you must still give the employee a written notice of termination, a brief statement that explains the reason for the termination, and any entitlements or payments owed to the employee (e.g. annual leave).