Is notice required when dismissing an employee for serious misconduct?

What are your responsibilities when you discover an employee has seriously broken the rules?  First of all, what defines ‘serious misconduct?’, and do they have any rights in this instance?

Dismissal is a tricky area in any case as it involves things like notice periods, warnings of various kinds, replacement of staff, workload etc, not to mention pay, leave and other entitlements.

‘Serious Misconduct’ is defined by FW Regulations (r 1.07) as the following:

• Wilful or deliberate behaviour that is inconsistent with the continuation of employment;
• Conduct that causes serious and imminent risk to the health and safety of persons or the reputation, viability or profitability of the business;
• Theft;
• Fraud;
• Intoxication at work; and
• Refusal to carry out lawful and reasonable instructions of the employer

Even if an employee has displayed behavior that could be labeled as ‘Serious Misconduct’, you still have responsibilities to comply with before you dismiss them if you do not wish to be faced with an unfair dismissal case.

• You must ensure that you
• Explain the allegation to them
• Provide them with an opportunity to respond (such as a) meeting
• Ensure that the response is proportionate to the misconduct
• Comply with notice requirements contained in any relevant contracts and/or awards