Misconduct in the Workplace: Examples & Process

By Mohammad Barzegar, Director, TQN Personnel · Reviewed by Mohammad Sakhvidi · Updated October 2026 · 12 min read

Misconduct in the workplace is behaviour by an employee that breaches their duties or the standards the employer can fairly expect, and serious misconduct can justify dismissal without notice. Employers need a valid reason and a fair process, while employees have the right to know the allegation, respond to it and bring a support person. This guide covers both sides, from first warning to termination, and links to our detailed guides on each step.

What is misconduct in the workplace?

Misconduct covers conduct from minor breaches of policy to serious, damaging behaviour. The label depends on the facts, the role and the contract or award.

Term	Meaning	Why it matters
Misconduct	Conduct that breaches the employee's duties or workplace standards but may not justify dismissal on its own.	It usually leads to a warning, counselling or a performance process first.
Serious misconduct	Conduct serious enough to justify immediate dismissal, such as theft, violence or a serious safety breach.	No notice is required, but the process must still be fair.
Procedural fairness	Telling the employee the concern, letting them respond and considering their reply.	A valid reason can still produce an unfair dismissal if the process was poor.
Summary dismissal	Dismissal with immediate effect and no notice period.	It is lawful only where the conduct justifies it.
Performance issue	Poor results or capacity, rather than a breach of conduct standards.	It follows a different process, such as a performance improvement plan.

What is misconduct: examples by severity

Use the table as a guide only, because the same act can fall into different levels depending on the facts.

Level	Examples	Usual response
Minor	Repeated lateness, ignoring a dress or PPE rule, personal phone use during a task.	Informal counselling or a first written warning.
Moderate	Ongoing breach of site rules, rudeness to customers, misuse of company property.	Formal warning after a meeting and a chance to respond.
Serious	Theft, assault, working under the influence, deliberate safety breach, fraud.	Investigation, possible suspension and possible summary dismissal.
Refusal of a lawful direction	Declining a reasonable, safe instruction. See insubordination.	Clarify the direction, then warn or investigate as the facts require.

Employee misconduct: who the rules apply to

Most private-sector employees are in the national system, while NSW state public sector employees and some local government employees are covered by the NSW state system.

Worker	Position
Permanent employee	Covered by the employment contract, awards, policies and the unfair dismissal scheme once the minimum period is met.
Casual employee	Can be dismissed or have shifts stopped, and may be covered by unfair dismissal if employed regularly and systematically with a reasonable expectation of continuing work.
Labour hire worker	The provider is the employer and handles discipline, but the host can end the placement for conduct and should raise concerns promptly.
Small business employee	The Small Business Fair Dismissal Code applies, and the minimum period is 12 months.
Genuine contractor	Managed under the contract, not the employment process. An ABN does not decide the question.

Serious misconduct termination: rules and entitlements

Dismissal for serious misconduct changes notice, but it does not remove other entitlements or the need for fairness.

Item	Position
Notice of termination	Not required for serious misconduct. Otherwise NES notice is 1 week up to 1 year of service, 2 weeks for 1 to 3 years, 3 weeks for 3 to 5 years and 4 weeks above 5 years, plus 1 extra week for some workers over 45 with at least 2 years of service.
Pay in lieu of notice	Allowed for other dismissals, instead of working out the notice.
Unused annual leave	Paid out when employment ends.
Long service leave (NSW)	Workers with 5 to 10 years do not get a pro rata payment if dismissed for serious and wilful misconduct.
Unfair dismissal claim	Possible within 21 days of the dismissal taking effect if the minimum period is met and the process or reason was harsh, unjust or unreasonable.
Compensation cap and high income threshold	$95,050 cap for claims lodged on or after 1 July 2026 and $190,100 threshold for dismissals on or after that date.

Worked example	Outcome
Employee with 6 years of service dismissed for performance	Entitled to 4 weeks' notice or pay in lieu, plus unused annual leave.
Same employee dismissed for proven serious misconduct	No notice, but still paid for work done and unused annual leave.
Employee believes the process was unfair	Can apply to the Fair Work Commission within 21 days.

How to handle misconduct in the workplace step by step

1. Note the facts, collect the evidence and decide whether the behaviour is a conduct or a performance issue.
2. Check the contract, award and policies for any set process or definitions.
3. Tell the employee the allegation in writing and give them reasonable time to prepare.
4. Hold a meeting where the employee can respond and bring a support person.
5. Consider the response honestly, seek any further evidence and decide on a proportionate outcome.
6. Confirm the outcome in writing, with the reasons, and record every step. Never backdate documents.

Employer and employee rights during a misconduct process

A fair process protects both sides. It also leaves less room for argument later.

• Employers must have a valid reason, follow a fair process and keep records for 7 years where they relate to pay.
• Employees can respond to the allegation, ask for details and bring a support person to meetings.
• Employers must not pressure a worker to resign or sign anything on the spot.
• Employees should keep copies of emails, messages and payslips, and note dates and attendees.
• Both sides should keep the matter confidential and respectful while it is being resolved.
• Employees can call the Fair Work Infoline on 13 13 94 for free information.
• Employers should treat each case of misconduct in the workplace on its own facts, and should not decide the category before hearing the employee's side.

Written warnings for misconduct in the workplace

Warnings put expectations on the record. Read the full guide on written warnings.

• Describe the behaviour, the standard expected and the date, without opinion or exaggeration.
• State the consequence of repeating the behaviour and what support is available.
• Give the employee a chance to respond, and attach their comments if they want.
• Do not use a warning to disguise a dismissal or to build a case unfairly.

Workplace investigations for misconduct allegations

Serious allegations need an impartial fact-finding process. See workplace investigations.

• Choose an investigator with no stake in the outcome, internal or external.
• Put the allegations to the employee, interview witnesses and keep notes.
• Decide on the balance of evidence, then record the reasons.
• Protect complainants and witnesses from retaliation.
• Give the employee a summary of the findings that relate to them, and a chance to comment before any decision is made.

Disciplinary meetings and misconduct

A meeting is the employee's chance to respond. Our guide to disciplinary meetings shows how to run one.

• Give written notice of the purpose, the allegations and the right to a support person.
• Keep the meeting calm, take notes and allow breaks.
• Do not decide the outcome before the meeting.
• Follow up in writing and allow time to reply.

Insubordination as misconduct

Refusing a lawful, reasonable direction can be misconduct, but context matters. Read about insubordination before acting.

• Check the direction was lawful, safe and clearly communicated.
• Consider whether the worker had a genuine safety concern or a right to refuse.
• Respond in proportion to the facts, starting with a conversation.
• Record the direction, the response and what followed.

Workplace mediation for conduct disputes

Some conduct problems are really relationship breakdowns. See workplace mediation as an early option.

• Offer mediation when the issue is communication or conflict and not a serious breach.
• Use a neutral person who is trusted by both sides.
• Agree outcomes in writing and review them after an agreed time.
• Use a formal process instead if bullying, harassment or safety risks are involved.

Performance improvement plans and misconduct

Not every problem is misconduct. A performance improvement plan suits capacity and results issues.

• Set clear, achievable goals, support and review dates.
• Keep the plan separate from a conduct process so each is fair.
• Meet regularly and give honest feedback.
• Do not use the plan as a formality before a decision already made.
• Record support offered, such as training or a mentor, so the plan is a real chance to improve and not a paper exercise.

Suspended from work during a misconduct investigation

Suspension can protect people and evidence, but it must be justified. Our guide covers being suspended from work.

• Check the contract and award on whether suspension is allowed and whether it is paid.
• Use it only when there is a real risk, and review it regularly.
• Tell the employee the reason and how long it is expected to last.
• Make clear that suspension is not a finding of guilt.

Common mistakes to avoid with misconduct in the workplace

• Dismissing on the spot without hearing the employee's side.
• Treating a performance problem as misconduct to avoid notice.
• Relying on a verbal warning that nobody wrote down.
• Letting one person investigate and decide when they are involved in the matter.
• Backdating documents or pressuring a worker to resign.
• Waiting longer than 21 days to lodge a claim, as an employee.
• Applying different standards to similar misconduct in the workplace depending on who is involved or how long they have worked there.

Misconduct in the workplace FAQ

What is misconduct?

Misconduct is behaviour that breaches an employee's duties or reasonable workplace standards. It ranges from minor policy breaches to serious acts such as theft or violence. The response should match the facts, with warnings for lesser matters and dismissal only where justified.

What is serious misconduct?

Serious misconduct is conduct serious enough to justify immediate dismissal, such as theft, assault, fraud or a deliberate safety breach. Notice is not required, but the employer still needs evidence and a fair process before acting.

Can you be fired without a warning for misconduct?

Yes, for serious misconduct, if the employer has a valid reason and has followed a fair process. For lesser conduct, a warning and a chance to improve are expected. The employee can apply for unfair dismissal within 21 days.

Do you get paid out after serious misconduct termination?

You are paid for work done and unused annual leave. You do not get notice or pay in lieu, and workers with 5 to 10 years of service do not get pro rata long service leave in NSW if dismissed for serious and wilful misconduct.

Can I bring a support person to a disciplinary meeting?

Yes. You can ask to bring a support person, and the employer should not unreasonably refuse. They are there for support, not to answer for you. Ask for the allegations in writing so you can prepare your response.

How long do you have to challenge a dismissal for misconduct?

You have 21 days from the day the dismissal takes effect to lodge with the Fair Work Commission. You also need to meet the minimum employment period of 6 months, or 12 months with a small business employer, so get advice early.

Next step: handle misconduct fairly

Write down the facts, follow a fair process and keep records of every step. At TQN Personnel, we place workers across Sydney and can help you find workers and manage placements. This is general information, not legal, tax or financial advice, so check the Fair Work Ombudsman, the Fair Work Commission or an employment lawyer for your situation.

Related guides

• Written warnings
• Workplace investigations
• Disciplinary meetings
• Insubordination
• Workplace mediation
• Performance improvement plan
• Suspended from work