There are a number of important Christmas party unfair dismissal lessons in a recent case decision handed down by the Fair Work Commission, writes Gordon Williams
As we’re leading up to the season for work-related Christmas parties, this is something I wanted to talk about – and the risks that go along with it. I didn’t have to look too hard to find a case worth talking about.
Keenan v Leighton Boral Amey Joint Venture involved a Christmas party back in December 2014. The case has all the usual inappropriate drunken behaviour you might expect – but interestingly, it played out in the Fair Work Commission (FWC) as it involved an unfair dismissal claim. However, it also considered the law relating to sexual harassment. So, what happened?
Mr Keenan was a team leader (he was also an elected AWU delegate and WHS representative). He and his colleagues attended his employer’s Christmas function at a hotel. The function went from 6pm – 10pm; Keenan arrived around 7pm having had a couple of beers beforehand. Initially, the hotel staff were responsible for serving drinks. However, towards the end of the evening, the employees could help themselves to beers from an esky.
Thirteen witnesses gave evidence and the FWC accepted the following:
- Keenan consumed about 10 drinks over the course of the evening and became quite intoxicated.
- Early on, Keenan was talking to another employee when someone tried to join the conversation. Keenan turned to the man and, seemingly unprovoked, told him to “f*** off, mate.”
- When Keenan later asked one of his younger female colleagues who the person was, she told him he’d just sworn at one of the company’s directors. When she challenged him about his attitude to management, Keenan said, “Who the f*** are you? What do you even do here?”
- Later, Keenan sat next to another female colleague and “interviewed” her about her marital status etc. He also asked for her telephone number. When she attracted the attention of another employee to join them, Mr Keenan said to the man, “I’m talking to her now, f*** off.”
The function ended at 10pm after which Keenan and a group of other employees went upstairs to the public bar, where they paid for their own drinks. The FWC accepted the following events occurred there:
- Keenan struck up a conversation with another female colleague telling her that he used to think she was a “stuck-up b**ch, but now you’re OK and I like you”.
- After a female colleague bought him another drink, Keenan leaned in and unexpectedly kissed her on the mouth and said to her, “I’m going to go home and dream about you tonight.”
- When led away by a colleague to the taxi stand outside, Keenan said to another female colleague, “my mission tonight is to find out what colour your knickers are”.
- Keenan then shared a cab to the other bar but was refused entry, effectively putting an end to his evening.
On Monday morning, management started to hear rumours about his behaviour and conducted an investigation. This resulted in Keenan (and his representative) attending a show cause meeting to explain why his employment shouldn’t be terminated. Having put a number of allegations to Keenan (albeit in quite general terms), and considering his responses, the company decided to dismiss him.
At the dismissal meeting, his representative argued the company could impose some other disciplinary action; Keenan also offered to apologise. However, the company refused to change its decision and he was dismissed and paid out his notice.
“Warn employees about the possibility of disciplinary action for inappropriate behaviour at work functions”
Keenan brought an unfair dismissal claim. His main argument was that the after-party in the public bar was outside the scope of his employment and the events there could not be relied on to justify his dismissal.
And here’s the surprise – the FWC agreed with Keenan.
This meant the Commissioner only had regard to some of the incidents. And although he decided one of them serious enough to provide a valid reason for the dismissal, other factors meant that, overall, the dismissal was unfair. And here’s why:
- Only the events which occurred at the Christmas function could be relied on to determine whether Keenan was dismissed unfairly.
- The Commissioner reviewed the case law relating to sexual harassment and decided the after-party (in the public bar) was not sufficiently connected to work.
- Because the after-party conduct could not be relied on, all but one of the other incidents were not serious enough to justify dismissal.
- The employer failed to control the service of alcohol at the party.
- The investigation was flawed – Keenan was not given details of the particular allegations. He was simply asked general questions which were difficult for him to properly answer.
- The after-party conduct didn’t have any ongoing consequences for the workplace.
- There was inconsistency of treatment – one of the managers involved in the dismissal decision had previously used offensive language towards a female colleague and was merely counselled.
- Keenan had a good history of prior employment and this incident was “isolated” and “aberrant”.
- The alternative disciplinary action proposed by Keenan’s representative offered a “proportionate response” to dismissal.
Having found the dismissal to be unfair, the Commissioner expressed the view that reinstatement was likely to be appropriate. He left this to the parties to try to reach some agreement (which it appears they did as there was no further order).
A final observation about this case – although the Commissioner was satisfied the after-party conduct was not sufficiently connected with Keenan’s employment, and that his employer would not be vicariously liable for any sexual harassment that occurred there, I’m not at all confident the Anti-Discrimination Board or Human Rights Commission would agree.
Key lessons from Keenan v Leighton Boral Amey Joint Venture
- Warn employees about the possibility of disciplinary action for inappropriate behaviour at work functions
- Regulate the service of alcohol – otherwise you might only have yourself to blame
- Think carefully about whether some other form of disciplinary action is appropriate
- Consider whether the employee’s conduct impacts people back at work
- Check whether your policies extend to after-work functions
- Check whether you’re being consistent in terms of treatment of similar conduct.
Image source: iStock