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Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. 44 ‘Serious misconduct’ is not defined in the LSL Act. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 263 In the same case, Dixon and McTiernan JJ said: “Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground for dismissal”. Statute may impose obligations to observe industrial awards and agreements, and in some instances the relevant terms of the employment relationship may be found in the industrial award which binds the parties at the relevant time. 50 Furthermore, arguably, the burden of proving the relevant misconduct is on the respondent: North at page 599.

Other known term: misconduct.

The standard of proof being on the balance of probabilities. There is a difference between underperformance and serious misconduct. Determination 56 The combined effect of some of these factors demonstrated a lack of respect and trust by Ms Reardon for the respondent and his business interests in a small business and undermined his role as her employer and was destructive of the employment relationship. 54 Having regard to this framework, did Ms Reardon’s conduct amount to ‘serious misconduct’ in the context of s 8 of the LSL Act? So too is the issue of the relevance if any of a distinction between those phrases, and the context in which they appear. Termination for Serious Misconduct. Examples include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business, theft, fraud, assault, or refusing to carry out a lawful and reasonable instruction that is part of the job.

The misconduct must be at least such as would justify termination, to be relevant under s. 4(2)(a)(iii) of the Long Service Leave Act, but with a further element, comprehended by the terms “serious and wilful”. In Blyth Chemicals Ltd v Bushnell, in the course of considering the position of the respondent, who was the manager of the appellant’s business, Starke and Evatt JJ said: “As manager for the appellant, the respondent was in a confidential position. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract.
53 For the purposes of the LSL Act, the misconduct must be of sufficient gravity such as to justify termination of the employment relationship in the context of beneficial legislation. The legal issue of what is meant by “misconduct” and “serious misconduct” in Australian workplace and fair work law is vexed. Further, s 8 of the LSL Act does not refer to an employee’s termination in the context of summary dismissal. The category of misconduct thus intended is a particular type of misconduct which, in terms of gravity, must be capable of being described as serious beyond circumstances which would simply justify termination. Visitors are warned that this site may inadvertently contain names or pictures of Aboriginal and Torres Strait Islander people who have recently died. Serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. 45 Distillation of his Honour’s reasons appear to do no more than say that whether misconduct can be considered ‘serious’ is a question of fact in the context of the employment relationship, albeit that he noted the meaning of the words were in the context of entitlement to pro-rata long service leave payments. Without this trust and confidence an employment relationship can’t continue.

The meaning of “serious misconduct” by an employee in Australian employment law is plagued by controversy and uncertainty. Three people worked at the Stratton Park Pharmacy at any one time5 ; • Ms Reardon was employed on a casual basis at the Stratton Park Pharmacy from 31 March 2003 to 13 October 2017 or approximately 14.5 years6 ; • Ms Reardon first became entitled to long service leave in March 2013 and took the total first entitlement in April to June 20147 ; • there was a personality clash between Ms Reardon and a pharmacist at the Stratton Park Pharmacy and the respondent initially sought to separate the two by having them work different shifts8 ; • while the relationship between Ms Reardon and the pharmacist was poor from the outset, it appears that the real deterioration in the relationship manifested in early 2017 and continued until Ms Reardon ceased working for the respondent9 ; • sometime either in or after July 2017, Ms Reardon, unhappy with the respondent asking her if she wished to work at the other pharmacy operated by him, decided to investigate behind the respondent’s back his reasons for asking to work at the other pharmacy thereby demonstrating a lack of confidence and respect in her employer10; and • when directed by another pharmacist to train a new person to take over the combined role of weekend Pharmacy Assistant at Stratton Park Pharmacy, Ms Reardon told a third person the pharmacist could ‘get stuffed’ because she felt aggrieved that someone else was working ‘taking [her] hours’, irrespective of the respondent’s reasons for making this decision11. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination.

51 In Wall v Wescott (1982) 1 IR 252 (Industrial Commission of New South Wales, 12 March 1982), Watson J considered the meaning of ‘serious and wilful misconduct’ in the context of the Long Service Leave Act 1955 (NSW) stating, at 256, (omitting citations): Misconduct justifying termination of employment includes misconduct outside the particular employment which is incompatible with the continuance of the employment relationship.
Therefore, in my view, for an employee to have engaged in ‘serious misconduct’ for the purposes of the LSL Act, the employer need not have summarily dismissed the employee so as to highlight the gravity of the misconduct.


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