What is serious misconduct?
Fair Work Regulation 1.07 covers deliberate conduct incompatible with continued employment and conduct creating serious and imminent risks to safety or the employer’s business. Examples include theft, fraud and assault. Whether particular conduct meets the definition depends on the circumstances. See the Fair Work Commission’s conduct guidance.
What standard of proof applies?
Workplace findings generally use the balance of probabilities: whether the conduct more likely than not occurred. Serious allegations require careful attention to the strength and quality of the evidence; they do not automatically change the standard to proof beyond reasonable doubt.
Can conduct outside work be investigated?
There needs to be a relevant connection to employment. Private conduct is not automatically a workplace matter. Obtain advice on that connection and the proposed scope before commencing an investigation.
Does a finding of serious misconduct mean immediate dismissal?
No automatic outcome should be assumed. The investigation establishes findings; the employer separately considers any employment response, the circumstances and applicable obligations with appropriate advice.
What if police or a regulator are involved?
Raise any existing or potential external process at the outset. Seek legal advice about reporting duties, evidence preservation and the timing and scope of workplace enquiries. A workplace investigator does not determine criminal guilt.
How long will it take, and what will it cost?
The number of allegations, participants, records and any external processes will affect timing and cost. An initial discussion helps define the scope, estimate the work and agree on progress updates.
