Changes to the definition of serious misconduct

Following from our recent article regarding the amendments to the Fair Work Act 2009 to include an entitlement to compassionate leave when an employee, or an employee’s spouse or de facto partner experience a miscarriage, the Federal Government has also legislated changes to the definition of “serious misconduct”.

What is serious misconduct?

Where an employee has engaged in serious misconduct, an employer has the ability to terminate an employee’s employment without notice.  Therefore, it is important to understand what sort of conduct constitutes serious misconduct.

The Fair Work Regulations 2009 (FW Regulations) set out the definition of “serious misconduct”.   In July 2021, the FW Regulations were amended to include “sexual harassment” as a form of serious misconduct.  It follows that serious misconduct is defined to include:

1. willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
2. conduct that causes serious and imminent risk to:
   1. the health and safety of a person; or
   2. the reputation, viability or profitability of the employer’s business;
3. the employee, in the course of the employee’s employment, engaging in:
   1. theft; or
   2. fraud; or
   3. assault; or
   4. sexual harassment;
4. the employee being intoxicated at work;
5. the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

What is sexual harassment?

“Sexual Harassment” under the FW Regulations has the meaning given by section 28A of the Sex Discrimination Act 1984.  Specifically, under the Sex Discrimination Act, a person sexually harasses another person if:

1. the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
2. engages in other unwelcome conduct of a sexual nature in relation to the person harassed,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

What do I need to do now?

Employers should consider reviewing employment agreements and policies to ensure that any definition of serious misconduct is updated to include sexual harassment.  We can help you with reviewing and drafting employment agreements or company policies to ensure you are compliant with these changes.