8 Sep 2015
Social occasions for work colleagues are supposed to be relaxed and build morale.  Even though attendance at functions may be voluntary, held outside of the workplace and after usual working hours the party itself is still clearly a ‘work related’ occasion and so obligations for both employees and employers to take care and behave appropriately certainly exist. 
So what should employers do if an employee overindulges and lets fly with very inappropriate behaviour?  
A recent decision of the Fair Work Commission (“FWC”) found the dismissal of an employee who by any account had behaved outrageously at a Christmas function to be harsh and unjust. 
Background
In Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156, the employee (Mr Keenan) attended the official Christmas function of his employer, Leighton Boral Amey Joint Venture (“LBAJV”). 
Mr Keenan became significantly intoxicated quickly and engaged in the following behaviour at the function:
• Said “F*%k off mate!” to one senior manager, and later also told another to “F*%k off”;
• Said to a junior female colleague, “Who the f*%k are you?  What do you even do here?”;
• Caused a female colleague to cry by saying “I thought you were a little bitch but you know you’re okay and I like you.
• Made another colleague feel so uncomfortable that she left the function because he intrusively inquired into her personal circumstances and then said “I want to ask for your phone number, but I don’t want to be rejected” 
After the function ended Mr Keenan joined a group of employees who decided to continue to socialise in another part of the Hotel, and then later went together in taxis to another venue.  Mr Keenan was ultimately refused entry to the second venue, however prior to that occurring he: 
• unexpectedly kissed an employee; 
• inappropriately touched another colleague on her chin, 
• made rude and abrasive comments to other colleagues; and   
• Said to a female colleague “My mission tonight is to find out what colour knickers you have on”.
Investigation Process

Mr Keenan participated in two meetings with the employer to discuss his behaviour at the function.  A total of eight allegations of inappropriate behaviour, bullying and sexual harassment were put to Mr Keenan.  Importantly the actual words the employer alleged Mr Keenan had said to each of his colleagues were not put to him.  
The employer determined that Mr Keenan had engaged in misconduct that was sufficiently serious to warrant termination.  He was dismissed and paid in lieu of notice.
Findings of the FWC
Only One Valid Reason for Dismissal
The FWC found that there was only one valid reason for Mr Keenan’s dismissal which was his statement: “Who the f*%k are you? What do you even do here?” (the “bullying statement”).  His other statements and conduct at the function were not considered to be valid grounds for dismissal.
The FWC found that none of Mr Keenan’s conduct after the official function ended was work related, and therefore could not be used as valid reasons for dismissal.  
Dismissal Was Harsh
The FWC concluded that the dismissal was harsh as it was disproportionate to the gravity of the bullying statement with regard to: 
• the lack of any work consequences
• Mr Keenan’s good employment record;
• the isolated nature of the misconduct;
• the fact that Mr Keenan was heavily intoxicated which significantly influenced his conduct;
• the provision of unlimited alcohol and the failure of the employer to ensure its consumption was adequately monitored and supervised;
• the existence of effective disciplinary alternatives available to the employer other than dismissal.
Dismissal Was Unjust

The FWC also concluded that the dismissal was unjust because the bullying statement was not directly put to Mr Keenan and so he did not have a proper opportunity to respond.
The FWC also found that Mr Keenan’s dismissal was unjust because earlier in the year another senior manager had made a statement to junior female colleague that was similarly offensive and constituted bullying, but which did not result in dismissal
Tips for Employers
This decision highlights once again the importance of procedural fairness.  Importantly this case also determines that misconduct that occurs after a work function is not considered to be work related.
Whenever a work function is planned, Employers should consider the following: 
• Remember you have a duty of care to your employees at any work related event.
• Clearly outline the start and finish times for the function and be sure to include a statement about expectations of acceptable behaviour and personal responsibility. 
• Do not rely solely on a venue’s undertaking to adhere to responsible service of alcohol requirements.
• Have strategies in place for monitoring employee behaviour at work functions, including what immediate action may be taken to respond to unsafe or unacceptable conduct (e.g. call a taxi and/or direct an employee to leave).
• Do not assume that clearly offensive behaviour at a work function necessarily warrants dismissal.  It is important to give careful consideration to all of the surrounding circumstances.
• If an employee misbehaves, seek early legal advice about how to conduct an effective investigation and ensure your disciplinary process results in a decision that cannot be successfully challenged.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now. 

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