difference between misconduct and serious misconduct australia
Visitors are warned that this site may inadvertently contain names or pictures of Aboriginal and Torres Strait Islander people who have recently died. Misconduct can be at two different levels: misconduct and serious misconduct.
In Blyth Chemicals Ltd v Bushnell, in the course of considering the position of the respondent, who was the manager of the appellant’s business, Starke and Evatt JJ said: “As manager for the appellant, the respondent was in a confidential position. In such circumstances: 1. 54 Having regard to this framework, did Ms Reardon’s conduct amount to ‘serious misconduct’ in the context of s 8 of the LSL Act?
This has not always been the case, but it is now an important legal issue since the Fair Work Act 2009 came into operation. 44 ‘Serious misconduct’ is not defined in the LSL Act. So too is the issue of the relevance if any of a distinction between those phrases, and the context in which they appear. 49 In North v Television Corporation Ltd (1976) ALR 599 Smithers and Evatt JJ stated (in the context of summary dismissal without notice): It is of assistance to consider the expression “misconduct” by reference to subject matter to which it is related and the context in which it appears. Other known term: misconduct. Further, as Mason J pointed out in Hospital Products Ltd v United States Surgical Corporation, the relationship between employee and employer is one of the accepted fiduciary relationships; their critical feature is that the fiduciary undertakes or agrees to act for or on behalf of, or in the interests of, another person in the exercise of a power or discretion that will affect the interests of that other person in a legal or practical sense. And it is clear that he might be dismissed without notice or compensation if he acted in a manner incompatible with the due and faithful performance of his duty, or inconsistent with the confidential relation between himself and the appellant”.
Statute may impose obligations to observe industrial awards and agreements, and in some instances the relevant terms of the employment relationship may be found in the industrial award which binds the parties at the relevant time.
Three people worked at the Stratton Park Pharmacy at any one time5 ; • Ms Reardon was employed on a casual basis at the Stratton Park Pharmacy from 31 March 2003 to 13 October 2017 or approximately 14.5 years6 ; • Ms Reardon first became entitled to long service leave in March 2013 and took the total first entitlement in April to June 20147 ; • there was a personality clash between Ms Reardon and a pharmacist at the Stratton Park Pharmacy and the respondent initially sought to separate the two by having them work different shifts8 ; • while the relationship between Ms Reardon and the pharmacist was poor from the outset, it appears that the real deterioration in the relationship manifested in early 2017 and continued until Ms Reardon ceased working for the respondent9 ; • sometime either in or after July 2017, Ms Reardon, unhappy with the respondent asking her if she wished to work at the other pharmacy operated by him, decided to investigate behind the respondent’s back his reasons for asking to work at the other pharmacy thereby demonstrating a lack of confidence and respect in her employer10; and • when directed by another pharmacist to train a new person to take over the combined role of weekend Pharmacy Assistant at Stratton Park Pharmacy, Ms Reardon told a third person the pharmacist could ‘get stuffed’ because she felt aggrieved that someone else was working ‘taking [her] hours’, irrespective of the respondent’s reasons for making this decision11. 57 However, and notwithstanding, I accept the respondent was entitled to terminate the employment relationship where it had in all reality irretrievably broken down, I am not satisfied the termination of Ms Reardon’s employment was for ‘serious misconduct’ as that term is defined in the LSL Act. The Fair Work Ombudsman website requires JavaScript. That is, the misconduct must be of a type that justifies not only termination but is of a gravity capable of denying the employee an entitlement to a statutory benefit where they have worked for an employer for a lengthy period of time. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Serious misconduct. Serious misconduct is labelled ‘serious’ because it can have the effect of destroying or undermining the relationship of trust and confidence between an employee and employer.
47 Relevantly, the majority in Concut at [17] stated (citations omitted): The issues which must be determined are to be understood in the context of the law respecting employment relationships. Loading results...
Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. 58 Simply put, Ms Reardon had worked for the respondent for long period of time. Under the Fair Work Act, an employer can instantly terminate an employee's employment, where the employee has engaged in 'serious misconduct'. Serious misconduct is when an employee: causes serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer's business or; deliberately behaves in a way that's inconsistent with continuing their employment. It would be unusual for this to be purely contractual. In such a situation it is reasonable to interpret the expression “misconduct” as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.