Do you know gross misconduct when you see it?

Be careful you don’t confuse employee misconduct with negligence, or you could wind up on the wrong side of the Fair Work Commission.

Do you know gross misconduct when you see it?

There is a crucial difference between gross negligence and gross misconduct that can be difficult to define. Get it wrong, however, and you could be sitting on the wrong side of an unfair dismissal dispute.
Such was the case for Star City Casino in Sydney, when they terminated the employment of security officer Matthew John following an incident captured on CCTV. John had asked an incoming patron for identification, but failed to properly evaluate it, thereby allowing the 17-year-old patron into the casino.
John, who had held his role for more than five years, agreed that he should have been more thorough. But he asserted that there were mitigating circumstances, including a lack of staffing support, absence of a team leader and too many people trying to gain entry.
John’s conduct, argued his employer, amounted to gross negligence, so he was summarily terminated.
He filed an unfair dismissal and the Fair Work Commission disagreed with his employer, stating that although John's conduct was deficient, it “did not involve the grave, serious or significant departure from the standard of care which should have been exercised and which caused substantial loss or damage to the employer, such as would be necessary to provide valid reason for his summary dismissal.”
His dismissal was ruled harsh, unjust and unreasonable and the Fair Work Commission’s ordered Star to reinstate John’s position and make up his lost pay (John v The Star Pty Limited [2014] FWC 543).
The commission noted that misconduct entails an element of wilfulness, while negligence is characterised by lack of care. This last point is a crucial factor for HR professionals, according to Michael Byrnes from Clayton Utz.
“The interaction between ‘serious misconduct’ and ‘gross negligence’ is complex and nuanced, and the relationship between the two concepts is likely to vex lawyers, judges, legal academics and HR professionals for some time,” Byrne said.
“What is clear, however, is that there is still a distinction between conduct that warrants summary dismissal, and conduct that doesn't.”
If and when such an issue occurs in your organisation, it is critical to establish intent before labelling an employee’s behaviour as ‘gross negligence’ or ‘gross misconduct’. 


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