Last Updated on 22/01/2026 by Damin Murdock
On many occasions our clients have asked whether they can dismiss an employee on grounds of serious misconduct. Although the law is quickly evolving the foundations to serious misconduct and summary dismissal remains the same.
Past case law establishes that serious misconduct justifying summary dismissal will only be established if the employee’s is of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer/employee. Furthermore, isolated conduct usually would not suffice. However, an action which is destructive to the relationship of good faith and confidence between an employee and employer will be considered by the Court on its facts.
The Victorian Supreme Court has recently dealt with a case of summarily dismissal on grounds of serious misconduct in the case of Davies v State of Victoria [2012] VSC343. In this case Mr Davies was a disability support worker who was employed by the Department of Human Services for a period of 15 years. On one occasion, a patient had urinated on himself whilst sleeping naked and Mr Davies attempted to guide him to the bathroom to cleanse him. The patient, still naked, fell down in the corridor and Mr Davies could not lift him with his own strength hence dragged him 1.5 metres to the bathroom where the patient could stand up with the assistance of cupboards. The dragging caused an abrasion to the patient which was not reported.
The Department of Human Services considered Mr Davies’ actions constituted serious misconduct and therefore summarily dismissed him from his employment. The Victorian Supreme Court agreed. It was held that Mr Davies conduct was a breach of various codes of conduct and human right standards and the action of dragging his patient in itself was degrading in character. As a consequence of Mr Davies breach of the Department of Human Services codes of conduct, Mr Davies was unsuccessful at trial.
If you have any questions in relation to this article, please contact Damin Murdock at Leo Lawyers on (02) 8201 0051 or at office@leolawyers.com.au.
DISCLAIMER: This article is not to be taken as legal advice and is general in nature. If you require specific advice, please contact us.
Damin Murdock (J.D | LL.M | BACS - Finance) is a seasoned commercial lawyer with over 17 years of experience, recognised as a trusted legal advisor and courtroom advocate who has built a formidable reputation for delivering strategic legal solutions across corporate, commercial, construction, and technology law. He has held senior leadership positions, including director of a national Australian law firm, principal lawyer of MurdockCheng Legal Practice, and Chief Legal Officer of Lawpath, Australia's largest legal technology platform. Throughout his career, Damin has personally advised more than 2,000 startups and SMEs, earning over 300 five-star reviews from satisfied clients who value his clear communication, commercial pragmatism, and in-depth legal knowledge. As an established legal thought leader, he has hosted over 100 webinars and legal videos that have attracted tens of thousands of views, reinforcing his trusted authority in both legal and business communities."
