15 Sep Newsletter: Drunk Manager’s Xmax Party Dismissal Is Unfair
Drunk Manager’s Xmax Party Dismissal Is Unfair
On 26 June 2015, Vice President Hatcher of the Fair Work Commission found that Leighton Boral Amey NSW Pty Ltd (“Leighton”) acted unfairly when it dismissed Stephen Keenan (“Mr Kennan”) from his employment because of his misconduct at the Employer’s Christmas party and events thereafter.
What happened?
In 2007, Mr Keenan commenced employment with a predecessor to Leighton. From April 2014, Mr Keenan’s employment was transferred to Leighton where he was appointed as Team Leader.
On 12 December 2014, Leighton hosted its Christmas party at the Novotel Sydney Brighton Beach Hotel, where Leighton arranged for beer, wine, some mixed drinks, soft drinks and finger food to be served free of charge to its employees, including Mr Keenan between 6.00pm and 10.00pm. Leighton issued directions to its employees prior to the Christmas party about appropriate standards. Mr Keenan was issued with this direction by his manager “Do me a favour, don’t be that idiot that I have to deal with on Monday morning. Don’t be that person who gets blind drunk, abuses someone or punches someone”.
Mr Keenan quickly became intoxicated, having consumed alcohol before arriving and consuming another eight or so drinks at the Christmas party. At no time during the Christmas Party was Mr Keenan refused alcohol, asked to leave the venue or spoken to about his behaviour.
Mr Keenan’s conduct at the Christmas party included telling a director of Leighton to “f**k off mate”, stated to another employee, “who the f**k are you? What are you even doing here?”, asking a female employee for her phone number and making a number of offensive comments about Leighton and its board members.
Immediately following the conclusion of the Christmas party at 10.00pm, a number of Leighton employees, including Mr Keenan, moved to a bar upstairs at the Novotel. Mr Keenan’s conduct after the Christmas party ended included, calling a female employee a “stuck up b***h”, talking about punching another person, kissed a female employee and proceed to make the comment “I’m going to go home and dream about you tonight”.
On Monday 15 December 2015, a number of employees made complaints about Mr Keenan’s behaviour. Leighton instigated an investigation, which included meeting with Mr Keenan on 16 and 18 December 2014. Leighton decided to terminate Mr Keenan’s employment, which Mr Keenan was notified of on his return from leave on 20 January 2015. In dismissing Mr Keenan, Leighton only relied upon Mr Keenan’s conduct of requesting a phone number and kissing of another female employee (i.e. sexual harassment).
Mr Keenan disputed the dismissal, including asserting that the dismissal was inconsistent with the treatment of senior managers involved in more serious offences. Mr Keenan commenced an unfair dismissal claim.
What did the Fair Work Commission find?
Notably in finding that Mr Keenan’s dismissal was unfair, Vice President Hatcher held that:
- Leighton had not dismissed Mr Keenan for a valid reason because:
- Mr Keenan kissing the female employee after the Christmas party concluded, was conduct which occurred outside of work and accordingly, in the circumstances not a valid reason to dismiss Mr Keenan as Leighton was not vicariously liable for the sexual harassment; and
- Mr Keenan’s request for the phone number did not amount to sexual harassment.
- There was disparity in the way Leighton handled Mr Keenan’s conduct compared with an earlier unrelated incident involving a manger’s inappropriate conduct.
- Leighton had a valid reason to dismiss Mr Keenan, namely for his conduct in saying to a much younger and smaller employee, “who the f**k are you? What are you even doing here?”. However, that reason was not included in the letter of termination and was not put to Mr Keenan for his response and accordingly failed on procedural unfairness grounds.
- “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 allow the unlimited service of free alcohol at the function.”
What does Mr Keenan’s unfair dismissal teach us?
- Employers should give due consideration to whether unlimited alcohol is appropriate at a work function. Employers should consider requiring employees to purchase alcoholic drinks or giving vouchers for a set number of alcoholic drinks. Consideration should also be given to the types of alcohol served.
- One or more managers should be nominated to supervise a work function and particularly the conduct of employees.
- Employers need to ensure that they apply their policy and procedures fairly and consistently amongst all employees, including senior managers.
- Employers should carefully consider the reasons for an employee’s dismissal and ensure that each valid reason for dismissal is put to the employee for their response.
- Employers should ensure that employees have a safe way of getting home following the end of a work function. Employers should not condone or promote “after parties”.
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.
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