When an employee engages in workplace misconduct, employers must decide how to respond. Not every incident amounts to serious misconduct – some actions fall into the category of minor misconduct.
If you are considering terminating an employee for minor misconduct, it is essential to understand your legal obligations under the Fair Work Act 2009 (Cth) and follow the correct disciplinary procedure.
In this article, our employment lawyers explain the difference between major and minor misconduct, provide examples of workplace misconduct, outline the disciplinary actions available to employers, and set out how to lawfully terminate employment for minor misconduct, while protecting employee rights under the Fair Work Commission.
Key Takeaways
Minor misconduct can include repeated lateness, absenteeism, or failure to follow workplace policies.
Employers must use a progressive disciplinary process (warnings before termination).
Dismissal for minor misconduct must be fair, lawful, and properly documented.
The Fair Work Commission may rule a dismissal unfair if procedures are not followed.
Employers should seek legal advice before terminating employment to reduce legal risk.
Serious Misconduct vs Minor Misconduct
What is Serious Misconduct?
Serious or major misconduct is behaviour so serious that it undermines the employment relationship and often involves illegal or dangerous actions.
Examples of major misconduct include:
Fraud or theft
Damage to company property
Breaches of workplace health and safety laws
Workplace violence or threats
Attending work intoxicated
Consequences of major misconduct can include:
Immediate termination without notice or pay in lieu
Employees remain entitled to unpaid wages and accrued leave
Legal Tip: Employers must still follow fair procedures, including conducting an investigation and allowing the employee to respond before dismissal.
What is Minor Misconduct?
Minor misconduct refers to workplace behaviour that breaches company policy, but does not justify instant dismissal.
Examples of minor misconduct include:
Regular lateness or absenteeism
Leaving work early without approval
Careless use of company equipment
Failing to wear a uniform or safety gear
Using company property for personal purposes
While less severe, repeated minor misconduct can escalate into grounds for termination.
Disciplinary Action for Minor Misconduct
Employers should apply progressive discipline when dealing with minor misconduct:
First instance: verbal warning or counselling
Second instance: written warning
Repeated instances: escalation to formal disciplinary action, including possible termination
Remember: The approach should be fair, consistent, and documented to minimise the risk of unfair dismissal claims.
Steps to Lawfully Terminate for Minor Misconduct
Follow these steps to reduce legal risk:
Identify the misconduct: Clearly record the behaviour and its impact.
Discuss with the employee: Provide them the chance to explain, and allow a support person to attend meetings.
Consider disciplinary options: Such as a warning or final warning before dismissal. Employers should ensure that any workplace investigation is fair, unbiased, and well-documented. For more detail on avoiding flawed investigations, see: Unfair Workplace Investigations.
Prepare a termination letter: Clearly state reasons, effective date, and any termination entitlements.
Meet with the employee: Deliver the letter in person, explain the decision, and keep records for compliance.
Employer Tip: Even when procedures are followed, employees can still lodge claims with Fair Work. Seeking legal advice before dismissal is highly recommended.
Fair Work Laws on Termination
Under section 385 of the Fair Work Act, an employer must ensure that any dismissal is not harsh, unjust, or unreasonable.
When reviewing a dismissal, the Fair Work Commission considers the factors set out in section 387 of the Fair Work Act, including:
Whether there was a valid reason related to the employee’s conduct or capacity
Whether the employee was notified of that reason and given an opportunity to respond
Whether the employer unreasonably refused to allow the employee to have a support person present during discussions about termination
Whether the employee had received prior warnings about unsatisfactory performance or behaviour
For employers wanting a deeper understanding of their obligations under workplace laws, see our guide: The Fair Work Act – A Guide for Employers
Case Law: Minor Misconduct and Invalid Reasons for Dismissal
The Fair Work Commission has found that not all employee misconduct justifies termination. Below are three key cases where dismissals were ruled invalid:
Swearing and Inappropriate Behaviour
Symes v Linfox Armaguard Pty Ltd [2012] FWA 4789
An employee was dismissed after swearing at a manager and punching a noticeboard. The Commission held that while swearing was inappropriate, it was tolerated within the workplace. The dismissal was therefore not based on a valid reason.
Failure to Report Colleague’s Dishonesty
Crockett v Vondoo Hair t/a Vondoo Hair [2012] FWA 8300
An employee was accused of failing to report another worker’s misconduct. The Commission found the employer had not conducted a proper investigation and denied procedural fairness. The dismissal was held to be without valid reason.
Refusal to Follow an Unlawful Policy
Lee v Superior Wood Pty Ltd [2019] FWCFB 2946
A worker refused to comply with a fingerprint scanning policy for workplace attendance, citing privacy concerns. The Full Bench found the policy breached the Privacy Act 1988 (Cth) and was therefore unlawful. The employee’s dismissal was unfair.
Frequently Asked Questions
What is considered minor misconduct in the workplace?
Minor misconduct refers to less serious breaches of company policy, such as lateness, absenteeism, or failing to wear safety equipment.
For insights on how specific behaviours like social media conduct may impact dismissal decisions, see our article on Social Media: Grounds for Dismissal.
Can an employee be dismissed immediately for minor misconduct?
Generally, no. Termination without notice is usually reserved for serious misconduct. Minor misconduct normally requires a progressive disciplinary process.
How many warnings should an employer give before dismissal?
There is no fixed number, but employers are expected to give at least one written warning before moving to termination for repeated minor misconduct.
What happens if an employer dismisses someone unfairly?
The employee may file an unfair dismissal claim with the Fair Work Commission, which can result in reinstatement or compensation.
For a deeper dive into unfair dismissal eligibility and case examples, check out our detailed article:
Unfair Dismissal Cases and Eligibility.
Should employers seek legal advice before dismissal?
Yes. Because termination can carry legal risks, consulting an employment lawyer ensures compliance with the Fair Work Act and reduces exposure to claims.
For a practical guide on how employers can defend unfair dismissal claims, see: Defending Unfair Dismissal: A Guide for Employers.
About the Author
Farrah Motley
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