Gross misconduct (also called serious misconduct) includes theft, fraud, assault, serious safety breaches, or being intoxicated at work. It can justify summary dismissal (immediate termination without notice), but a proper investigation is still required.
Last verified: 21 May 2026Gross misconduct (also called serious misconduct) includes theft, fraud, assault, serious safety breaches, or being intoxicated at work. It can justify summary dismissal (immediate termination without notice), but a proper investigation is still required.
Even in cases of serious misconduct, dismissal can be unfair if the employer failed to conduct an adequate investigation, did not give the employee a chance to explain, or if the conduct does not actually meet the legal definition of serious misconduct under Regulation 1.07 of the Fair Work Regulations 2009.
General protections may apply if the gross misconduct allegation is fabricated or used as a pretext for unlawful discrimination or retaliation for exercising a workplace right.
Even for gross misconduct, the employer should: (1) stand the employee down on pay pending investigation, (2) conduct a thorough and impartial investigation, (3) put the specific allegations to the employee in writing, (4) allow the employee to respond with a support person present, (5) genuinely consider the response, and (6) only proceed with summary dismissal if the conduct meets the legal threshold of serious misconduct.
In Streeter v Telstra Corporation (2008), the FWC found that even where serious misconduct occurred, the employer's failure to follow a fair process rendered the dismissal procedurally unfair. The Commission awarded compensation despite the employee's conduct.
21 days
From the date your dismissal takes effect. Strictly enforced.
26 weeks’ pay
For unfair dismissal claims. General protections claims have no cap.
Gross Misconduct can be a valid reason for dismissal under the Fair Work Act, but the employer must follow a proper process including investigation, warnings (where appropriate), and giving the employee a chance to respond. Failure to follow a fair process can make the dismissal unfair even if the reason is valid.
Yes, provided you meet the eligibility requirements: you must have completed the minimum employment period (6 months for large employers, 12 months for small business) and earn below the high-income threshold ($183,100) unless covered by an award or enterprise agreement. You must lodge within 21 days.
Unfair dismissal focuses on whether the dismissal was harsh, unjust, or unreasonable (capped compensation at 26 weeks' pay). General protections claims apply when dismissal is for a prohibited reason such as discrimination, exercising a workplace right, or union activity. General protections have no compensation cap and the employer bears the reverse onus of proof.
You have 21 calendar days from the date your dismissal takes effect to lodge an application with the Fair Work Commission. This deadline is strictly enforced and extensions are only granted in exceptional circumstances.
The FWC can order reinstatement (getting your job back) or compensation of up to 26 weeks' pay. The amount depends on factors including how long you worked there, your remuneration, efforts to find new employment, and any misconduct that contributed to the dismissal.
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FairWork Mate is an independent commercial service. We are not affiliated with, endorsed by, or associated with the Fair Work Ombudsman, the Fair Work Commission, or any Australian Government agency. Content is general information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
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