The Fair Work Act (Regulation 1.07) defines serious misconduct as;

conduct that is wilful or deliberate and that is inconsistent with the continuation of the employment contract. It is also conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business.  

Serious misconduct can include theft, fraud, assault, intoxication at work and refusal to carry out reasonable and lawful instructions consistent with the employment contract.

Fighting or Assault

This behaviour is generally considered to be serious misconduct and reasonable grounds for dismissal however, the employer needs to thoroughly investigate all of the circumstances surrounding the incident rather than focussing solely on the aggressor. They need to take into account extenuating circumstances, the length of service in combination with the track record of the employee and whether the employee was in a supervisory position where a higher standard of conduct is expected. There needs to be a high level of proof (evidence) to support an allegation of assault, and consideration needs to be given to whether the matter needs to be referred to police.


Generally, the conduct of employees in their spare time is irrelevant to their employment.

However, if the conduct causes serious damage to the employee/employer relationship or when it is detrimental to the employer’s interests or is incompatible with the person’s position, an employer is justified in conducting an investigation.

Conduct of a criminal nature outside of work does not necessarily constitute serious misconduct in a work context if the offense is not related to the type of work the person is doing and isn’t connected with their employment in any way.

Breach of Company Policy

This is an area that can prove tricky for employers when it comes to deciding whether dismissal is an option. As with any form of serious misconduct, the standard of proof is high and the breaches need to be of a sufficiently serious nature as to permanently affect the employee/employer relationship.