The Fair Work Commission decision in Keenan v Leighton Boral
Amey Joint Venture  FWC 3156 highlights a number of
issues for employers to consider as we head into the festive
The case concerned the conduct of an employee, Mr Keenan, during
and immediately after a Christmas function organised by his
employer (the Company). The function was held at a hotel between
the hours of 6 pm to 10 pm. During these hours, drinks were served
to guests without charge. Mr Keenan had approximately 10 drinks,
and was at no point refused service of alcohol. After a certain
point in the night, he and other employees were even able to help
themselves to beverages.
During the function, Mr Keenan verbally abused several other
employees, including a senior manager. After the function ended, he
and some other employees went to the hotel bar upstairs from where
the function was held. It was there that Mr Keenan kissed a female
colleague unexpectedly on the lips.
Mr Keenan was subsequently dismissed after the Company met with
him and put to him allegations of misconduct. Mr Keenan brought an
unfair dismissal claim and sought reinstatement.
Vice President Hatcher of the Fair Work Commission found that
the dismissal was unfair.
It was held that, while Mr Keenan had committed sexually
harassment, the relevant incident occurred after the function
ended, and was therefore not sufficiently connected to Mr
Keenan's employment to provide a valid reason for dismissal.
The Commission also found the Company had not properly communicated
to Mr Keenan the allegations in relation to his conduct during the
Consideration of the Role of Alcohol
In the decision, the Commission was highly critical of the
Company for the running of the Christmas function, which was found
to have 'exacerbated' the effects of alcohol on Mr
Vice President Hatcher stated the irresponsible service of
alcohol 'was ultimately a result of the fact that [the Company]
did not place anyone with managerial authority in charge of the
conduct of the function, but essentially let it run itself.' He
went on to note:
'... it is contradictory and
self-defeating for an employer to require compliance with its usual
standards of behaviour at a function but at the same time to allow
the unlimited service of free alcohol at the function. If alcohol
is supplied in such a manner, it becomes entirely predictable that
some individuals will consume an excessive amount and behave
Ultimately, it was found that 'the role of alcohol at the
function weighs, at least in a limited way, in favour of a
conclusion that the dismissal was harsh.'
What this means for Employers
An important factor in the Keenan decision was that part of the
employee's conduct occurred 'out of hours'. However,
given the Commission's views on 'unlimited service of free
alcohol' in the context of unfair dismissal, the decision may
have broader implications for employers.
In light of this decision, employers should consider:
putting measures in place to ensure the responsible service of
alcohol at work functions;
appointing an employee with managerial authority to be 'in
charge' at work functions; and
establishing a clear distinction between official work
functions and other functions that the organisation does not
organise or encourage staff to attend.
Where an employee commits or is suspected of committing
misconduct at, or immediately following, a work function, it is
recommended that the employer seek advice before taking any action
against the employee.
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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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