Your employer might allege that you engaged in misconduct or bad behaviour. Misconduct and bad behaviour can be a valid reason for dismissal, and serious misconduct can be a valid reason for instant dismissal.
My employer dismissed me because of 'misconduct'. Can I still claim for unfair dismissal?
If your employer is not a small business in an unfair dismissal claim based on misconduct, the Fair Work Commission will do a number of things, including:
- Look at the facts and decide whether they believe the “misconduct” actually occurred.
- Decide whether the misconduct was a valid reason for dismissal (because it’s possible you might have been “guilty” of the misconduct, but it still isn’t reasonable to have dismissed you for it).
- Look at how other examples of similar conduct by other employees were treated
- Look at the way in which you were warned about misconduct in general, and this misconduct in particular
If you were employed by a small business employer, provided your employer reasonably believed you were guilty of serious misconduct, you can be dismissed without notice or warning and it will not be unfair.
If you've been dismissed for misconduct and you want to make an unfair dismissal claim, you will need to think about each of these issues and more. It helps to have documents or other proof if there is a dispute about whether you did what you were accused of.
Our Online Unfair Dismissal Lawyer service will guide you through some key questions step-by-step to make this as easy to understand as possible.
What does "acting against my employer's interests" mean?
As a general rule, if you actively do something as an employee that can damage your employer’s business interests, you run the risk of being dismissed, and it may be difficult to show that such a dismissal was unfair. Some of the things that could damage your employer’s interests would include:
- Doing something that poses a serious risk to your employer’s reputation, viability or profitability. While this is a bit of a “catch-all” phrase, the Fair Work Commission has ruled that things like contacting current or prospective customers of your employer and soliciting their business for yourself (not your employer) “poses a serious risk” to your employer’s profitability. It’s a common sense test that will rely very much on the specific facts.
- Setting up a business or doing other work that’s in direct competition with your employer: if you were dismissed for doing something like setting up a business in direct competition, it’s generally unlikely that you’d be able to claim it was unfair, unless (for example) you have a specific agreement with your employer that allows you to compete with them.
- Criticising your employer on social media or otherwise in a public way: This has become a big issue in recent years, with several high-profile cases about the use of Facebook or Twitter. While the facts of each case are important, remember that the Fair Work Commission will generally rule that social media is effectively a public forum, and so some kinds of criticism of an employer are actually legitimate grounds for dismissal.
If your former employer says that one of these is the reason for your dismissal, then you will either need to show:
- That it wasn't true; or
- If it was true, that there were some other factors that should have been taken into account.
Our Online Unfair Dismissal Lawyers service will guide you through some of these factors.
What does inappropriate behaviour at work mean?
There's no "hard and fast" definition of inappropriate behaviour, but if you were proven to have done any of the following things, then it may be difficult to argue that your dismissal was unfair:
- Behaved violently or aggressively at work, or towards a work colleague
- Came to work under the influence of alcohol or illicit drugs
- Deliberately refused to obey a lawful and reasonable direction
- Sexually harassed or bullied a co-worker
- Accessed pornography at work or using a work computer or device
If your former employer said that the reason for your dismissal was because you behaved this way, then it will be important to be able to either prove that it's not true at all, or that there are other factors that need to be taken into account. Our Online Unfair Dismissal Lawyers service will guide you through some of these factors.
What are some of the factors that an employer should take into account instead of dismissing someone for misconduct?
If your employer dismissed you because of misconduct, the first question to ask is whether you in fact did the thing that you were "accused" of. But even if it's true that you did it and your employer is not a small business, there may be other factors that still mean your dismissal could have been unfair.
- It was not as serious as your employer claims
- You only partly did what you were accused of
- It happened outside work in your own time
- You were a longstanding employee and you’d never been in trouble before (the length of time you've been an employee, and whether you've ever been in trouble over that time, can be taken into account by the Fair Work Commission)
- Other employees did the same thing and didn't get dismissed (the Fair Work Commission may take into account whether you were treated fairly in relation to other employees who did the same thing)
- You were provoked by the behaviour of another employee
- Your conduct was not deliberate but accidental
- Dismissal was a disproportionate response, you should have got a warning instead
- You didn't realise you were doing the wrong thing as you hadn't been trained /there was no company policy
If your employer was a small business, different rules apply.