Serious misconduct
Version 3.2
March 2010
Serious misconduct [PDF 70kB]
What is it?
Employers are strongly urged to contact the Department of Education and Training's (DET) Apprenticeships Info line on 1800 210 210 immediately if an issue of serious misconduct arises. Employers should also contact the Fair Work Infoline on 13 13 94 to discuss the implications of serious misconduct on the apprentice or trainee's wages.
Provision exists for an employer to immediately suspend and, if the employer wishes to, seek approval to cancel the training contract where the apprentice or trainee engages in serious misconduct and because of the serious misconduct; the employer decides it is unreasonable to continue training the apprentice or trainee at that time.
Note: The provision for employers to suspend and/or apply to cancel an apprentice or trainee only exists if the apprentice or trainee has engaged in serious misconduct as described in the Vocational Education, Training and Employment Act 2000 and outlined below.
Serious misconduct is defined as:
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theft
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assault
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fraud.
If the theft, assault or fraud occurs outside of work hours, it would be considered serious misconduct if it has a significant negative effect on:
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the apprentice or trainee's ability to perform their duties; or
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the employment relationship (not the interpersonal relationship) in general; or
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the employer's business reputation.
Serious misconduct at work is classed as:
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being under the influence of liquor or a drug; or
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causing an imminent risk of serious bodily injury or work-caused illness or a dangerous event occurring; or
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behaving in a manner that is inconsistent with the continuation of a registered training contract.
This provision applies to clearly defined types of behaviour, and strict timeframes apply for the employer to advise the apprentice or trainee, and DET, of the suspension and/or cancellation for serious misconduct.
STEP 1: Employer suspends the training contract because the apprentice/trainee has engaged in serious misconduct
The employer may suspend the training contract if there is evidence the apprentice or trainee has engaged in serious misconduct by either:
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telling the apprentice or trainee that the contract is suspended and giving the apprentice or trainee a suspension notice within one working day after the suspension
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giving the apprentice or trainee a written suspension notice.
A suspension notice where it relates to serious misconduct is defined as a notice:
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stating that the apprentice or trainee is suspended, or (if the apprentice or trainee was told of the suspension) confirming the suspension
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stating the grounds for the suspension
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stating whether the employer proposes to apply for cancellation of the training contract.
The employer is encouraged to include the following in the suspension notice:
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the nature of the offence which is alleged to have occurred
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when it occurred
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who committed it
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who witnessed it
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details of previous instances and the actions taken at that time
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what impact the offence has - direct or indirect cost to the business, personal injury etc
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the identity of accomplices if any, and the action which has been taken in relation to them etc
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the employer's intent to apply for cancellation of the training contract.
STEP 2: Employer notifies DET of the suspension for serious misconduct
Where an employer suspends a training contract for serious misconduct, they must:
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within one working day after the suspension, notify DET of the suspension (this can be in person, via phone or email); and
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within five working days after the suspension, provide DET with a copy of the suspension notice.
STEP 3: DET confirms or refuses the suspension
Where the employer applies for cancellation of the training contract, a delegated officer of DET will, by fair procedures decide the application. Where suspension occurs without an application for cancellation, the DET officer will confirm or refuse to confirm the suspension.
DET will then provide both the employer and the apprentice or trainee with an information notice stating the reasons for its decision.
Where an employer suspends the training contract of their apprentice or trainee for serious misconduct, and the suspension notice states that the employer proposes to apply for cancellation of the training contract, the apprentice or trainee is taken to be 'stood down' from the apprenticeship or traineeship until DET decides the application.
Where an employer suspends the training contract of their apprentice or trainee for serious misconduct, and the suspension notice does not state that the employer proposes to apply for cancellation of the training contract, the apprentice or trainee is taken to be 'stood down' from the apprenticeship or traineeship for:
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if the suspension notice states a period of suspension of not longer than one working day - the stated period
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one working day.
If DET refuses the suspension, it will notify the employer and the employer must immediately resume training the apprentice or trainee.
Reasons DET may refuse the suspension include, the employer:
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failing to give the apprentice or trainee a suspension notice within one working day after the suspension
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failing to notify DET of the suspension within one working day after the suspension
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failing to provide DET with a copy of the suspension notice within five working days after the suspension
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proposing cancellation and DET refusing to cancel the training contract.
Who to contact?
It is advisable that, before an employer takes action to suspend an apprentice or trainee for serious misconduct, they contact Apprenticeships Info on 1800 210 210 to discuss the matter. Employers should also contact the Fair Work Infoline on 13 13 94 to discuss the implications of serious misconduct on the apprentice or trainee's wages.