Australia: Employers on notice for end of financial year parties

Last Updated: 14 July 2015
Article by Gina Bozinovski

In a recent Decision the Fair Work Commission (FWC) has put employers on notice for their role in "plying" employees with unlimited alcohol at work functions. In Stephen Keenan v Leighton Boral Amey NSW Pty Ltd (U2015/2778), 26 June 2015, Vice President Hatcher held that an employee had been unfairly dismissed despite his "drunken", "boorish", "unpleasant" and intrusive behaviour at the company's Christmas party, in part because of the unlimited alcohol served at the function.

The facts surrounded the evening of the Leighton Christmas party which involved a series of conduct by Keenan. The facts of the case involve behaviour over a period of about 5 to 6 hours, during which Keenan engaged in drinking (by his own admission) about 10 beers and 1 vodka and coke.

The allegations against Keenan are summarised as follows:

  • Inappropriate behaviour and language which included swearing at a director and senior manager;
  • Sexual harassment of Ms Kennedy which included repeated questioning about the employee's personal life and indirectly requesting her telephone number;
  • Bullying of Ms Crosser – first occasion (at the function);
  • Bullying of Ms Crosser by calling her a derogatory name (at the function);
  • Bullying of Ms Stokes (first occasion at the function in which Kennan swore at her and acted aggressively toward her);
  • Further harassment of Ms Stokes (second incident);
  • Sexual harassment of Ms O'Reilly (where he kissed her on the lips); and
  • Sexual harassment of Ms Kearns (where he know the colour of her underwear).

Leighton investigated the number of complaints and subsequently held a meeting with Keenan. It was agreed at the meeting that the company would consider the issues and would communicate its decision to Keenan on 20 January 2015 on his return from leave. Upon his return from leave, Keenan was dismissed by Leighton. In its dismissal letter, Leighton outlined two occurrences which were the bases for dismissal:

  • Keenan's sexual harassment of Kennedy (point 2 above); and
  • Keenan's harassment of O'Reilly (point 7 above).

Leighton argued that the two incidences constituted sexual harassment for which Leighton could be held vicariously liable under the Sexual Discrimination Act (SD Act) and therefore was grounds for dismissal.

Keenan contended that his dismissal was harsh, unfair and unjust and sought reinstatement.

The FWC considered whether the two allegations of sexual harassment relied upon by Leighton were valid reasons for Kennan's dismissal. Ultimately it held that there were not.

No sexual harassment at the function

The FWC considered whether the conduct of Keenan at the Christmas party itself (between the hours of 6pm and 10pm) consisted sexual harassment and therefore whether reliance on allegation 2 above (the sexual harassment of Kennedy) was grounds for dismissal. It was held, that although it was reasonable to conclude that Kennedy may have been offended, humiliated or intimidated, the line of questioning and demeanour of Keenan did not contain the "requisite sexual express sexual advance or proposition" and whilst it was "unpleasant..(and)..a boorish attempt by a drunk to lay the foundation for a future relationship with a woman he hardly knew (by making an) oafish intrusion into matters of personal sensitivity " were not sufficiently serious to constitute a valid reason for dismissal

After function activity no liability

Vice President Hatcher held that the majority of the allegations, being allegations 4, 6, 7 and 8, were held after the end of the company function (at or after 10pm) in the upstairs or on the street. After a lengthy discussion of the SD Act and consideration whether the activity was within the scope of Keenan's employment, Vice President Hatcher ultimately concluded that such conduct was private activity and therefore could not constitute a valid reasons for dismissal. At paragraph 101 of the Decision Vice President Hatcher states:

"I do not consider that conduct which occurred at the upstairs bar can be said to be in connection with Mr Keenan's employment. The social interaction which occurred there was not in any sense organised, unauthorised, proposed or induced by (Leighton). Those who gathered there did so entirely of their own volition. It was a public place. There was nothing in the Code of Conduct or relevant policies which suggested they had any application to social activities of this nature ... (and) no evidence that such expectations was communicated to employees"

It was held that Keenan's conduct in the upstairs bar was "merely incidental to his employment ", not rendered unlawful by the SDA Act and therefore not conduct for which Leighton was vicariously liable. The reliance by Leighton on point 7 of the allegations (the harassment of O'Reilly at the upstairs bar) did not constitute a valid reason for dismissal, "even though that conduct fell within the statutory definition of sexual harassment "

Bullying of Stokes

Vice President Hatcher considered that allegation 5 (the bullying of Stokes) was ground for dismissal. He held that Keenan was "aggressive, intimidatory and bullying...given that Keenan was an intoxicated middle aged man and Stokes was a much younger and smaller female. " He considered that on any reasonable view Keenan's behaviour constituted bullying and the incident constituted a valid reason for the dismissal. However, as allegation 5 had not been put to Keenan and he did not have a proper opportunity to respond, then Leighton could not retrospectively rely on the allegation for grounds for dismissal .

The Decision
Vice President held that Keenan's dismissal had been harsh, unjust or unreasonable on the following basis:

  • There was no evidence that Keenan's approaches to Stokes had any ongoing consequence for the workplace, that is, it did not impact her capacity to work;
  • Keenan had previously a good work record in excess of 7 years of permanent employment;
  • Keenan's behaviour at the Christmas party was "isolated" and "aberrant in nature";
  • The provision of alcohol at the Christmas party was a mitigating factor as "alcohol tends to induce a loss of self-restraint and a sense of responsibility". The provision of alcohol was an exacerbating factor and in Vice President Hatcher's opinion "is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour...but at the same time allow the unlimited service of free alcohol at the function...I consider that the role of alcohol at the functions weighs, at least in a limited way, in favour of a conclusion that the dismissal was harsh ."

Lessons for employers
The lessons for employers are:

  • Consider how much alcohol is served at your work function, what supervision exists at the function, and whether employees are adequately informed of their obligations under the workplace policies and workplace expectations;
  • Ensure that your codes of conduct and behavioural policies are up to date and consider the wider contexts of employee interaction;
  • If relying on sexual harassment reasons, ensure that you adequately consider the application of the SD Act; and
  • When undertaking investigations of alleged misbehaviour ensure that all avenues are thoroughly investigated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Gina Bozinovski
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.