HR managers, line managers, and business owners often face challenges when employees refuse to comply with workplace directives. In Australia, this behaviour may constitute serious misconduct under the Fair Work Act 2009, particularly where it involves a failure to follow lawful and reasonable instructions. This guide outlines what serious misconduct is, how to identify it, and how to manage it lawfully and effectively.
What is Serious Misconduct in Australian Workplaces
Under Fair Work Regulations 1.07, serious misconduct refers to wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the employment contract. It may also involve conduct that poses a serious and imminent risk to:
– the health or safety of a person, or
– the reputation, viability, or profitability of the employer’s business
See regulation FAIR WORK REGULATIONS 2009 – REG 1.07
Examples of Serious Misconduct Include:
– Theft or fraud
– Assault or sexual harassment
– Intoxication at work
– Refusing to follow lawful and reasonable instructions
What are Lawful and Reasonable Instructions at Work?
A lawful instruction must not contravene any state, territory, or federal law. For example, an instruction to drive a company vehicle without a valid licence would not be lawful.
A reasonable instruction depends on context, including:
– The terms of the employee’s contract
– The employee’s job description and role
– The nature of the task or directive
– Past interactions and history between the employer and employee
Guide for preventing and responding to workplace bullying
Stop bullying benchbook (p.69)
Dismissal and the Standard of Proof in Misconduct Investigations
When considering termination for serious misconduct, employers must be mindful of the legal standard of proof. Courts and tribunals apply the Briginshaw v Briginshaw principle, meaning that although the standard remains on the balance of probabilities, more serious allegations (such as dishonesty or violence) require stronger, more persuasive evidence.
Unfair dismissals benchbook (p.119)
Case Study: Refusal to Follow Instructions – Grant v BHP Coal Pty Ltd
In Grant v BHP Coal Pty Ltd, an employee was dismissed for refusing to attend a medical assessment following a workplace injury. The Fair Work Commission found the instruction was lawful and reasonable, and the dismissal was upheld. This case highlights the importance of compliance and the legal risks of unjustified refusal.
Grant v BHP Coal Pty Ltd [2014] FWC
How to Investigate Serious Misconduct: Best Practice for HR and Line Managers
Although serious misconduct may justify immediate dismissal, a fair and thorough investigation is essential.
Steps in a Best-Practice Investigation:
1. Gather and document evidence of the alleged misconduct
2. Meet with the employee to understand their response and any mitigating circumstances
3. Apply company procedures and policies consistently
4. Ensure decisions are based on objective evidence, not assumptions
5. Communicate the outcome and reasons clearly in writing
Is Conducting an Investigation Reasonable Management Action?
Under the Fair Work Act 2009, reasonable management action carried out in a reasonable way is not considered workplace bullying. This includes disciplinary processes and investigations into misconduct. However, poor communication or bias during these processes can undermine an otherwise legitimate action. At the very least, to be considered reasonable, the action must be lawful and must not be ‘irrational, absurd or ridiculous’.
Stop bullying benchbook (p.73)
Conclusion: Managing Serious Misconduct and Lawful Instructions
Failure to follow lawful and reasonable instructions at work may constitute serious misconduct and could justify immediate dismissal. However, dismissal must be both substantively justified and procedurally fair. Employers, HR managers, and business owners must understand their legal obligations and follow best-practice steps when managing employee conduct issues to mitigate risk and maintain compliance under the Fair Work Act.
Need Expert Help with Employee Misconduct?
If you’re an HR manager, business owner, or employer navigating a serious misconduct issue, it’s essential to get professional advice. For tailored support or to conduct workplace investigations in line with Australian law, contact our team of employment relations experts.
Legal Disclaimer:
This article provides general information about workplace misconduct under Australian law. It is not legal advice. Always seek professional advice tailored to your situation from a qualified employment lawyer or HR consultant.