Industrial Relations Advisory: Gross Misconduct

The difference between gross misconduct and ordinary misconduct.

“Gross misconduct” is misconduct that is so serious (“sufficiently grave” is the term legally used) that it may warrant dismissal for a one time and first offence.  This is seldom used and must fit all the following criteria if it is not to end up expensively in the Industrial Court.

So, in considering whether the misconduct is “gross”, the following “test of sufficiency” should be applied:

  1. where the dismissal is for a single offence (gross misconduct). This is where an employee’s conduct is considered to “repudiate the employment contract” and is both willful and a breach of an important contractual obligation.  Examples include theft, drug taking or selling on the job, violence, gross negligence or the breach of any of the implied terms in the employment contract such as negligence that results in damage to property or persons;
  2. where the dismissal is for a series of acts of ordinary misconduct and constituted the final step of a disciplinary procedure under which previous warnings have been given repeatedly both verbally and in writing but have not resulted in a change of behaviour. Dismissal must still follow the principles of natural justice outlined elsewhere in this series.  Examples include:
  • poor timekeeping
  • absenteeism
  • abuse of sick leave
  • insubordination
  • disrespect of customers or co-workers.

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