The dynamism of serious misconduct

Serious misconduct is often spoken about as though it were fixed and well understood. In practice, it is anything but static. While conduct such as theft, fraud and sexual harassment remain clear examples, case law shows an expanding and more nuanced approach to what may justify summary dismissal.

This article considers how Australian courts and the Fair Work Commission (FWC) have approached serious misconduct in recent years, and how changing workplace norms, technology and expectations of behaviour have influenced that approach.

Serious misconduct – the statutory framework

Serious misconduct is not defined in the Fair Work Act 2009 (Cth), but the Fair Work Regulations 2009 (Cth) (regulation 1.07) provides guidance with examples such as theft, fraud, violence and serious breaches of work health and safety obligations.

However, this is not a closed list. The FWC has repeatedly held that the determination of serious misconduct depends on a variation of circumstances including the nature of the conduct, employee's role and seniority, employer policies and expectations and procedural fairness.

Expansion beyond traditional categories

Recent decisions demonstrate that serious misconduct is no longer confined to obvious breaches or criminal conduct. The case of Jackie Du v Australian Postal Corporation [2026] FWC 1134 exemplifies how advancements in telemetric and electronic tracking technologies have significantly broadened the scope of serious misconduct in the workplace. In this case, Australia Post utilised telemetric devices attached to postal delivery motorcycles to monitor the speed, location and work intensity of its employees. The data revealed instances of speeding, including riding at 22 km/h on footpaths where the limit was 10 km/h, and "wilful idleness", evidenced by prolonged gaps between delivery scans ranging from 20 to 54 minutes. These gaps were suspected to be deliberate attempts to extend delivery times and qualify for overtime, a practice colloquially referred to as "hanging out". The telemetric data not only detected these behaviours but also substantiated allegations during disciplinary proceedings, leading to the employee's summary dismissal after 23 years of service. Deputy President Colman upheld the dismissal, emphasising that the employee's conduct, including speeding and failure to perform duties, constituted serious misconduct. This case underscores the evolving nature of serious misconduct, demonstrating how modern tracking technologies enable employers to identify and address behaviours that extend beyond traditional categories of workplace infractions.

Adversely, actions that would have previously been considered serious misconduct, have been dismissed by the FWC for being unfair. In the case of Mr Daniel Thomas v Bin Boy Environmental Pty Ltd [2026] FWC 917, Mr Thomas, a truck driver, was dismissed for placing pornographic material in a staff area and making inappropriate comments in work-related WhatsApp groups. While the FWC acknowledged that these actions constituted valid reasons for disciplinary action, it ultimately found the dismissal to be unfair due to significant procedural shortcomings. Commissioner Tran criticised the employer's "relaxed approach to procedural fairness", noting that Mr Thomas was not adequately warned of the reasons for his dismissal nor given an opportunity to respond to the allegations. The case serves as a cautionary tale for employers, emphasising the necessity of adhering to proper procedures when addressing misconduct, even in cases involving modern workplace challenges such as inappropriate electronic communications.

Out‑of‑hours conduct and social media

One of the most significant developments is the treatment of out-of-hours conduct. Serious misconduct may be found where conduct, including social media activity, damages the employer's reputation, affects workplace relationships, or is inconsistent with the employee's duties or position. In the well-publicised case of Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669, Ms Antoinette Lattouf, a casual radio presenter for the Australian Broadcasting Corporation (ABC), faced public complaints about her perceived lack of impartiality of ongoing international conflicts, stemming from her social media activity. Despite being advised to avoid posting controversial content, she reposted a controversial video on her personal Instagram account. ABC removed her from all remaining shifts on the premise that her actions breached editorial policies or internal directives. The court found however, that the ABC failed to prove its decision was not influenced by her political opinions, highlighting the increasing scrutiny of employees' personal social media use and public expressions of opinion, even outside work hours, for potential conflicts with organisational values or public perception. This case underscores how personal online activity, particularly for high-profile employees, can intersect with professional obligations and be construed as misconduct when it conflicts with an employer’s policies or public image.

The principle that out-of-hours conduct can amount to serious misconduct was also affirmed in Corry v Australian Council of Trade Unions (t/as ACTU) [2022] FWC 288, where the FWC upheld the dismissal of an employee for behaviour outside work hours that was incompatible with the employer’s values and policies.

Procedural fairness remains critical

Despite the broader scope of serious misconduct, as demonstrated by the cases above, procedural fairness remains critical. Employers must clearly identify alleged misconduct, conduct a fair and balanced investigation, give the employee an opportunity to respond, and ensure the disciplinary outcome is proportionate. In James Cook University v Ridd (2020) FCAFC 123, the Federal Court emphasised the importance of procedural fairness, finding that the university’s failure to follow its own disciplinary procedures rendered the dismissal unfair, even though the underlying conduct was serious.

Practical implications for employers

These developments highlight the necessity for employers to regularly review workplace policies, articulate clear behavioural expectations and assess misconduct on a case-by-case basis. For employees, the law now recognises that workplace obligations may extend beyond traditional working hours or physical workplaces. Ultimately, serious misconduct reflects contemporary standards and the changing nature of work, requiring fairness, proportionality and procedural integrity throughout disciplinary processes.

For both employers and employees, the case law serves as a reminder that workplace obligations may extend beyond traditional working hours and physical workplaces.

Need guidance on managing misconduct issues? Contact our team for practical, timely employment law advice.

Authors: Shawn Skyring & Saige Levy

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.