As the end of the year swiftly approaches, along with it comes the inevitable festive season celebrations of office parties and other functions. Although it is a time to celebrate the year that was and recognise the hard work by staff, employers need to ensure that adequate planning has been done.
The best way to minimise the risk of a legal hangover is to:
- Send a reminder to all staff on the day of the function reminding them of the expected behaviour and their responsibilities at the party.
- Set a clear start and finish time for the function.
- Ensure responsible service of alcohol guidelines are adhered to.
- Make sure food and non-alcoholic drinks are also served.
- Appoint someone from management to be responsible for monitoring employee behaviour at the party and also oversee the responsible service of alcohol.
The morning after…
So you’ve followed these steps and everyone has had a great time – or so you think! Then the day after the party you find out some employees enjoyed themselves a little too much. What do you do now?
It is important to remember that allegations regarding conduct at any function organised and funded by an employer should be dealt with the same as any other allegation of misconduct. The allegations must be investigated, put clearly and unambiguously to the employee to respond to and then a decision made based on all of the information and evidence at hand.
It is important that consideration is given to things such as the amount of alcohol served and the manner in which it was served; whether there was a clear finish time for the function; did the misconduct occur at the function or did it occur after the function had finished? These are all important factors and have been highlighted in the decision of the Fair Work Commission in Keenan v Leighton Boral Amey Joint Venture  FWC 3156. The relevant facts in that case were:
- Leighton Boral Amey Joint Venture (LBAJV) was Mr Keenan’s employer
- LBAJV organised and funded a Christmas function on 12 December 2014
- The function was held in a private room at a local hotel and there was an agreement between LBAJV and the hotel that food and alcohol would be served between the hours of 6pm and 10pm and that the hotel would adhere to the responsible service of alcohol
- An email was sent to staff on the day of the function reminding them that company policies must be followed and that they should enjoy the function responsibly
- Mr Keenan consumed a considerable amount of alcohol at the function but was at no point refused service
- At the function, it was alleged that Mr Keenan:
- verbally abused a Director of LBAJV by telling him to “f… off”
- asked another employee “who the f… are you?”
- asked another employee for her phone number
- At 10pm the function finished. A number of staff members (including Mr Keenan) went to the hotel’s public bar area and continued consuming alcohol that they purchased themselves
- At the public bar, Mr Keenan:
- grabbed hold of another employee’s face and kissed her on the mouth without warning and without her consent
- told the employee that he was “going to go home and dream about you tonight”
- At approximately 11pm when leaving the bar and waiting for a taxi, Mr Keenan said to another female employee “my mission tonight is to find out what colour knickers you have on”
- A number of employees complained to LBAJV about Mr Keenan’s conduct
- A formal meeting was held with Mr Keenan and his representative on 18 December 2014 to allow him to respond to the allegations
- The allegations were not, however, put to Mr Keenan in a complete and clear manner. For example, one allegation put to Mr Keenan was “sexual harassment of Ms O’Reilly”. This incident involved Mr Keenan forcefully kissing Ms O’Reilly without her consent
- LBAJV made the decision to terminate Mr Keenan’s employment and relied on his conduct of sexually harassing the two fellow employees at the public bar after the function as the reason for making the decision.
The Fair Work Commission found that, although there was a valid reason for termination, Mr Keenan’s dismissal was unfair and alternatives to termination were available and should have been considered.
The Commission found that Mr Keenan’s misconduct did not have any significant ongoing workplace consequence. Given the misconduct relied upon for termination occurred in a public section of the hotel after the function had finished, the Commission found that the misconduct was not relevant to LBAJV as an employer as it was not within the place of work and did not significantly impact on LBAJV or its employees. Further, the Commission also found that the copious amounts of alcohol provided by LBAJV was a mitigating factor for Mr Keenan’s behaviour.
Plan the function properly by ensuring the tips above are followed:
- If there are allegations that an employee has acted inappropriately at a work function, ensure the allegations are investigated carefully
- Consider whether the misconduct took place at the function or after the function finished
- Make sure the allegations put to the employee are clear, detailed and unambiguous
- Consider whether the misconduct is serious enough to warrant dismissal or if other disciplinary action would be more appropriate.
If you would like more information or advice in relation to an employment issue, please contact Sharlene Wellard.
This article was first published in Early Edition, Summer 2016, the Australian Childcare Alliance Queensland magazine.