Quick Answer:

Serious misconduct is wilful or deliberate behaviour that is inconsistent with continuing the employment, or conduct that puts a person’s health and safety, or the business’s reputation, viability or profitability, at serious and imminent risk. It is described in regulation 1.07 of the Fair Work Regulations 2009. Serious misconduct can justify dismissal without notice, but only where the conduct genuinely meets that threshold and the employer still follows a fair process.

Many managers understand that serious misconduct may justify dismissal without notice. What is less clear is which conduct meets that threshold and how to follow a fair process.

This guide explains what serious misconduct means in Australia, what may qualify, and the steps that help employers make a fair, defensible decision.

What Is Serious Misconduct?

Serious misconduct has its ordinary meaning under the Fair Work Act, and that meaning is described in regulation 1.07 of the Fair Work Regulations 2009.

In plain terms, it is conduct serious enough to break the employment relationship. Regulation 1.07 covers wilful or deliberate behaviour that is inconsistent with continuing the employment, and conduct that causes serious and imminent risk to the health or safety of a person, or to the reputation, viability or profitability of the employer’s business.

The word serious matters. A minor breach of policy, a one off lapse in judgement, or underperformance will rarely meet this bar.

Serious misconduct is the small category of behaviour that is grave enough to justify ending employment straight away.

Serious Misconduct vs General Misconduct

General misconduct and serious misconduct are handled very differently, so getting the label right is the first decision you make.

Aspect General misconduct Serious misconduct
Severity Breaches standards but does not break the relationship Grave enough to break the employment relationship
Typical response Warnings and a chance to improve May justify dismissal without notice
Notice Notice or pay in lieu applies Summary dismissal may apply, without notice
Examples Lateness, a first minor policy breach Theft, assault, serious safety breach

The line between the two is easier to hold when the standard is written down. A clear code of conduct tells employees what is expected and gives managers something concrete to measure the behaviour against.

What Counts as Serious Misconduct?

Regulation 1.07 lists conduct that is treated as serious misconduct. It is a guide, not an automatic switch, because context still matters.

  • Wilful or deliberate behaviour that is inconsistent with continuing the employment
  • Conduct causing serious and imminent risk to the health or safety of a person
  • Conduct causing serious and imminent risk to the reputation, viability or profitability of the business
  • Theft, fraud, assault or sexual harassment in the course of employment
  • Being intoxicated at work
  • Refusing to carry out a lawful and reasonable instruction that is consistent with the employment contract

Regulation 1.07 also makes clear that some of these examples do not apply if the employee can show that, in the circumstances, the conduct did not make continuing the notice period unreasonable. In other words, you still have to look at the facts of the case rather than apply a label.

Can You Dismiss Someone for Serious Misconduct?

Yes. Serious misconduct can justify summary dismissal, which means ending the employment without notice or payment in lieu of notice.

According to the Fair Work Ombudsman, this is only appropriate where the conduct genuinely meets the serious misconduct threshold.

Even then, dismissal is not automatic. You still need to be satisfied the conduct happened, that it is serious, and that dismissal is a fair response once you have heard from the employee.

Summary dismissal removes the notice requirement. It does not remove other final pay entitlements, such as outstanding wages and accrued annual leave.

What Small Businesses Should Know

Businesses with fewer than 15 employees are covered by the Small Business Fair Dismissal Code.

The Code allows dismissal without notice or warning where the employer believes on reasonable grounds that the conduct is serious enough to justify immediate dismissal.

It gives theft, fraud, violence and serious safety breaches as examples. The Fair Work Commission will generally treat a dismissal as fair if the employer followed the Code and can provide evidence of it, so the records matter here too.

How to Run a Fair Disciplinary Process

A fair process is what turns a defensible reason into a defensible dismissal. These steps follow the fairness factors the Fair Work Commission weighs when it reviews a dismissal.

1
Gather the facts: Investigate before you decide anything. Collect evidence, statements and any relevant records. Do it promptly. Delay weakens the evidence and can look unfair in its own right.
2
Put the allegations in writing: Tell the employee clearly what is alleged and what rule or standard it breaches. Give enough detail for a real answer: what happened, when, where and who was involved.
3
Hold a meeting and allow a support person: Give reasonable notice and let the employee bring a support person. The support person is there to support the employee, not to speak for them.
4
Give a genuine chance to respond: Let the employee explain before any decision is made and mean it. A termination letter drafted before the meeting tells its own story.
5
Consider the response: Weigh what the employee says. A fair process can still change your mind. Ask whether dismissal is proportionate once you factor in the explanation, length of service and past record.
6
Confirm the outcome in writing: Set out the decision, the reasons, and the effective date.
7
Keep records: Retain the investigation, the allegations, the meeting notes, the response and the decision. Store them where they can be found later, not in one manager’s inbox.

What Happens if You Get It Wrong?

An eligible employee can lodge an unfair dismissal claim with the Fair Work Commission, generally within 21 days of the dismissal taking effect.

The Commission looks at whether there was a valid reason for the dismissal and whether the process was fair.

That means a dismissal can be found unfair even where some misconduct occurred, if the process was rushed or the evidence was unclear.

The Fairness Factors the Commission Weighs

Section 387 of the Fair Work Act sets out what the Commission takes into account. In summary:

  • Whether there was a valid reason for the dismissal related to the person’s conduct or capacity
  • Whether the person was told that reason
  • Whether they had an opportunity to respond
  • Whether the employer unreasonably refused a support person
  • Whether the person had been warned, where the dismissal related to unsatisfactory performance
  • The size of the business and whether it has dedicated HR expertise
  • Any other matters the Commission considers relevant

What the Fair Work Commission Data Shows

Dismissal decisions are being tested more often. The Commission’s 2025-26 annual report recorded its highest caseload to date.

18,653
unfair dismissal applications were lodged with the Fair Work Commission in 2025-26.
Fair Work Commission Annual Report 2025-26
35%
of all lodgements with the Commission that year were unfair dismissal applications.
Fair Work Commission Annual Report 2025-26
40%
more unfair dismissal applications than in 2020-21.
Fair Work Commission Annual Report 2025-26

Not every claim succeeds, and many settle at conciliation. The point for employers is simpler. A dismissal for serious misconduct may well be reviewed, and the review will look at your process as closely as your reason.

How Sentrient Supports a Fair, Defensible Process

Sentrient is not a law firm and does not give legal advice. What Sentrient does is provide the training, policy and records layer that makes a fair process easier to run and easier to prove.

That includes code of conduct training and workplace behaviour training, policy acknowledgements that show employees knew the standard, and a clear record trail behind investigations and decisions. When a dismissal is questioned, those records are often what shows the process was fair.

Frequently Asked Questions

1. What Is Serious Misconduct Under Australian Law?

Serious misconduct has its ordinary meaning under the Fair Work Act and is described in regulation 1.07 of the Fair Work Regulations 2009. It covers wilful or deliberate behaviour that is inconsistent with continuing the employment, and conduct that causes serious and imminent risk to a person’s health and safety or to the reputation, viability or profitability of the business.

2. What Is the Difference Between Misconduct and Serious Misconduct?

General misconduct breaches your standards but does not on its own justify instant dismissal, so it is usually handled with warnings and a chance to improve. Serious misconduct is grave enough that it may justify ending the employment immediately, without notice, once the conduct is proven and a fair process has been followed.

3. What Are Examples of Serious Misconduct?

Regulation 1.07 gives theft, fraud, assault and sexual harassment at work, being intoxicated at work, and refusing a lawful and reasonable instruction. It also covers wilful behaviour inconsistent with continuing the job and conduct that puts health and safety or the business at serious and imminent risk.

4. Can an Employer Dismiss for Serious Misconduct Without Notice?

Yes. Serious misconduct can justify summary dismissal, which is dismissal without notice or payment in lieu of notice. This is only safe where the conduct genuinely meets the threshold and you have followed a fair process to reach that decision.

5. Do I Still Need a Fair Process for Serious Misconduct?

Yes. Even where the conduct looks clear, you should investigate, put the allegations to the employee, allow a support person, and give a genuine chance to respond before you decide. The Fair Work Commission looks at both the reason for the dismissal and the fairness of the process.

6. Is a Single Incident Enough for Summary Dismissal?

It can be, if that single incident meets the serious misconduct threshold, for example theft or an assault. The key is whether the conduct is serious enough to break the employment relationship, not how many times it happened.

7. What Is the Difference Between Serious Misconduct and Poor Performance?

Serious misconduct is about behaviour that breaches conduct standards. Poor performance is about capability, where the person is trying but not meeting the standard. Performance issues are managed with clear expectations, support and warnings, not summary dismissal.

8. Can an Employee Claim Unfair Dismissal After Being Dismissed for Serious Misconduct?

Yes. An eligible employee can still lodge an unfair dismissal claim. The Fair Work Commission will decide whether there was a valid reason and whether the process was fair, so a rushed or poorly evidenced dismissal can be found unfair even where some misconduct occurred.

9. How Long Do Employees Have to Lodge an Unfair Dismissal Claim?

An employee generally has 21 days from the date the dismissal takes effect to lodge an unfair dismissal application with the Fair Work Commission.

10. What Records Should an Employer Keep During a Disciplinary Process?

Keep the investigation notes and evidence, the written allegations, records of any meetings and who attended, the employee’s response, the reasons for the decision, and the letter confirming the outcome. Good records are what let you show the process was fair.

Back Every Disciplinary Decision With Training, Policies and Records

Give your managers the training, policies and records that stand behind a fair disciplinary process. Sentrient’s compliance management system keeps conduct training, policy acknowledgements and records in one place, ready when a decision is questioned.

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Sources

Last reviewed: November 2026

Disclaimer: This article is general information, not legal advice. Serious misconduct and dismissal outcomes are fact specific. Check the Fair Work Ombudsman, the Fair Work Commission or a qualified employment lawyer before acting on a specific case.

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