Last year we reported on a case where an employee's dismissal for appalling behaviour at the work Christmas Party was found to be unfair. However, during 2016 two further decisions involving drunken partying among colleagues have wound back what seemed to be clear lessons from Keenan v Leighton Boral Amey NSW Pty Ltd  FWC 3156 (The Keenan Case).
Classic Christmas Party Disaster
As a reminder, here is a list of the offending behaviour Mr Keenan engaged in at his Christmas party in December 2014:
- Said "[BLEEP] off mate!" to one senior manager, and later told another to "[BLEEP] off";
- Said to a junior female colleague, "Who the [BLEEP] are you? What do you even do here?";
- Caused a female colleague to cry by saying "I thought you were a little [BLEEP] 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".
Somewhat surprisingly the Fair Work Commission (FWC) determined that Mr Keenan's only misconduct was the bullying statement
"Who the [BLEEP] are you? What do you even do here?"
and that none of the other conduct formed a valid reason for dismissal. The fact that Mr Keenan had received no prior warnings and had been of otherwise good character, along with the fact that other misconduct by employees during the year had not resulted in dismissal weighed together to result in a determination by FWC that Mr Keenan had been unfairly dismissed.
Qantas Pilot's Catastrophic Fall From Grace
After two years of litigation in firstly the Fair Work Commission but also on appeal to the Federal Court the case of Mr Steven Gregory v Qantas Airways Limited  FWCFB 2108 (The Qantas Case) was finalised in May this year. Mr Gregory was a long serving Qantas pilot who unsuccessfully argued that while on a layover in Santiago, Chile his drink was spiked causing him to become unusually disinhibited with the result that he groped his female co-pilot in a taxi on the way back to their hotel.
Mr Gregory managed to get himself to his hotel room after exiting the taxi, however he passed out on the floor, semi-naked with the door ajar – an event that was documented by a photograph the flight Captain took.
Mr Gregory submitted to a drug test the day after the incident which detected marijuana in his system. After hearing expert drug evidence, the Commission rejected the suggestion that Mr Gregory's drink was spiked and found instead that Mr Gregory had more than likely knowingly smoked marijuana during a short separation from his colleagues and that in doing so he was responsible for his subsequent loss of control and sexual harassment of his co-pilot.in the taxi which was found to be a valid reason for his dismissal.
Among the appeal grounds were that not enough weight was placed on the fact that Mr Gregory had served as a Qantas pilot for over 20 years with no other incident of misconduct, and that the female co-pilot had readily accepted his apology the next day and made no formal complaint of her own about the Mr Gregory's conduct. These grounds of appeal were ultimately dismissed it was noted that while Mr Gregory had suffered a "catastrophic fall from grace" his misconduct was of sufficient seriousness to warrant his dismissal.
Poolside Shenanigans and a Violent Confrontation
The second case of note in 2016 regarding drunken misconduct at work is Damien McDaid v Future Engineering and Communication Pty Ltd  FWC 343 (The McDaid Case) and involves another Christmas party disaster during last year's silly season.
Mr McDaid, a Project Manager was caught on CCTV pushing and punching his General Manager who was trying to get Mr McDaid to leave the party after he had pushed a mild mannered colleague into a swimming pool fully clothed.
Mr McDaid had a history of behaving aggressively towards colleagues and his dismissal was held to be fair.
Comparing Cases of Disgrace
The employees in both The McDaid Case and The Qantas Case were ultimately held to have been fairly dismissed. At first blush, the misconduct both those employees engaged in was not obviously more serious than that of Mr Keenan.
Mr Keenan's intoxication and subsequent rude and inappropriate remarks at the Christmas party function were not excused, however Vice President Hatcher made it clear that employers could not expect appropriate behaviour while also providing unlimited and unchecked access to alcohol at a Christmas function. In other words, Mr Keenan's intoxication was somewhat the employer's responsibility.
This meant that Mr Keenan's statement:
"I thought you were a little [BLEEP] but you know you're okay and I like you"
was dismissed as a valid reason for dismissal by Vice President Hatcher because;
"Mr Keenan, expressing himself with a drunk's frankness, no doubt thought that he was paying Ms Cosser a backhanded compliment."
The same reasoning did not save the drunken Mr McDaid who had also clearly consumed too much alcohol freely provided by his employer at a function held at the workplace before he pushed his colleague into the pool in an aggressive but arguably skylarking manner.
However, at this point - unlike Mr Keenan's employer who did not monitor his behaviour at any stage - Mr McDaid's General Manager stepped in after the poolside shove and directed Mr McDaid to leave the party as a result of his inappropriate behaviour. In response, Mr McDaid made the fatal decision to push and punch his boss to the point of knocking him to the ground and causing significant injury. It was the shocking violence that came in response to a reasonable direction by an employer trying to control and monitor appropriate behaviour at the Christmas party that was found to warrant Mr McDaid's summary dismissal.
Mr Keenan's unwanted sexual advances towards his colleagues after the Christmas party ended were held not to be valid reasons for dismissal because the work function had ended. However, in the Qantas Case Mr Douglas' sexual advance toward his co-pilot was clearly considered to be work related sexual harassment that warranted dismissal. The flight crew's night out in Santiago was still 'work related' because the employees remained their employer's responsibility while they transited in an overseas port.
The distinction is somewhat of a legally fine one and is largely based on whether the employer is in control of, liable or responsible for the safety and wellbeing of an employee at the time misconduct occurs. Essentially, if an employee is away on a work conference or at any event by invitation or direction of his or her employer then any sexual harassment of colleagues that occurs is likely to be 'work related' until such time that the event has clearly ended or the employee is once again responsible for themselves and owes no duty to the employer.
Tips for Employers
The new developments in this year's 'Disgrace Cases" do not change best practice for employers holding Christmas functions.
- 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, make no proclamations about whether the person is fired in the heat of the moment.
- 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.
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.