Many HR practitioners think of serious misconduct as a fixed and settled concept. That assumption if often shared by legal practitioners, resulting in employment contract templates that rigidly define serious misconduct for the purpose of that workplace.

In practice, the threshold for serious misconduct 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.

Serious misconduct is not defined in the Fair Work Act 2009 (Cth), but the Fair Work Regulations 2009 (Cth). Regulation 1.07 defines serious misconduct by reference to its ordinary meaning, and otherwise provides guidance with examples such as:

• wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;
• conduct that causes serious and imminent risk to the health or safety of a person, or the reputation, viability or profitability of an employer’s business; and/or
• refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

However, this is not a closed list. The Fair Work Commission 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.

Technology and culture changing definitions

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 shows 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.

Conversely, actions that would have previously been considered serious misconduct, have been dismissed by the Fair Work Commission 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 Fair Work Commission 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

Recent cases, including such high-profile decisions as Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669, have highlighted the impact of changes in technology and culture on out of hours conduct impacting the workplace, which can amount to serious misconduct.

The principle for considering out of hours conduct is well established in the case of Rose v Telstra Corporation Limited (1988) AIRC 1592 and provides the following summary:

• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer;
• the conduct damages the employer’s interests; or
• the conduct is incompatible with the employee’s duty as an employee.

In cases involving out of hours conduct, it is not sufficient for the employer to simply assert that the conduct will in some way affect the employer’s reputation or compromises the employee’s capacity to perform his or her duties. Rather, there needs to be evidentiary material upon which a firm finding may be made.

Conclusion

Despite the broadening scope of serious misconduct, procedural fairness remains critical. Employers must clearly identify the alleged misconduct, conduct a fair and balanced investigation, give the employee an opportunity to respond, and ensure the disciplinary outcome is proportionate.

These developments highlight the need for employers to regularly review workplace policies, set clear behavioural expectations and assess misconduct on a case-by-case basis. 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.

This article was written by Chris Morey, Special Counsel, and reviewed by Jessica Nicholls, Partner.