Boorish drunk wins unfair dismissal case

Thursday 23 July, 2015 | By: Darrell Giles | Tags: unfair dismissal, Fair Work Commission

Employers have been put on notice by the Fair Work Commission for providing too much alcohol at the work Christmas party.

A recent case highlighted the dangers of supplying unlimited drinks to staff.

Commission Vice President Adam Hatcher ruled 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 employee, Stephen Keenan, was a team leader at Leighton Boral Amey NSW Pty Ltd.  His employment was terminated as a result of his misconduct at a Christmas function on December 12, 2014. 

The commission heard that over a period of about 5-6 hours,  Mr Keenan consumed up to 13 alcoholic drinks, including two drinks before arriving at the function.

While defending the dismissal, Leighton Boral relied on eight alleged incidents of poor behaviour from Mr Keenan on the night, which they described as misconduct. His poor conduct at the party included swearing at a director, sexual harassment of a female colleague (asking about her personal life and for her phone number), and bullying and swearing at two different female colleagues. 

After the formal function had finished, some of the party-goers continued at the venue’s public bar. Mr Keenan’s poor behaviour continued. He kissed another female colleague and told another he would like to know the colour of her underwear.

Leighton Boral said grounds for his dismissal included Mr Keenan being a team leader in the organisation and the responsibilities of his role. He was terminated with four weeks payment in lieu of notice. In the dismissal letter, Leighton Boral referred to only two of these occurrences as the grounds for dismissal, including sexual harassment of two colleagues.

Vice President Hatcher rejected the first reason for the dismissal, describing the behaviour as a “boorish attempt by a drunk to lay the foundation for a future relationship with a woman”.

He agreed that Mr Keenan’s behaviour caused stress to the female and effectively ruined the night for her. However, he did not agree that this behaviour fulfilled the definition of sexual harassment, nor was it of a sufficiently serious nature to constitute a valid reason for dismissal. 

Vice President Hatcher also rejected the second reason for dismissal as he decided that he would only be able to consider the incidents that occurred during the hours of, and in the room which the function was held. He did not believe that the conduct which occurred outside of the primary function occurred in the course of employment, and therefore none of Mr Keenan’s conduct in the upstairs bar or on the street constituted a valid reason for dismissal.

Vice President Hatcher provided some definition of the statement in the course of employment: “where an injury occurred outside of work as a result of attendance at a particular place or engagement in a particular activity, the injury would only be in the course of employment if the employee attended the place or engaged in the activity because of encouragement or inducement by the employer".

The company did make its policies and standards clear to the employees prior to this event, however “there was no suggestion of any expectation that those standards would apply to behaviour outside the temporal and physical boundaries of the function”. 

Leighton Boral attempted to use an incident of Mr Keenan’s bullying and harassment of another female colleague at the function. Vice President Hatcher found that the ongoing bullying and harassment of this colleague at the party would have been grounds for dismissal stating that Mr Keenan’s behaviour was aggressive, intimidating and bullying towards the woman. What made thing worse was that he was an “intoxicated middle aged man and (she) was a much younger and smaller female”.

However, Leighton Boral failed procedurally when it did not put all of the allegations to Mr Keenan at the time of his dismissal. It was found that Mr Keenan did not have an opportunity to respond to this allegation and therefore the company could not retrospectively rely on this as grounds for the dismissal. Vice President Hatcher dismissed the submission.

He noted that there was little regulation around the service of alcohol throughout the night with employees serving themselves drinks as the night when on. He said that when alcohol was supplied in this manner, it was predictable that some attendees would consume in excess, and behave inappropriately. He went on further to state that “it is contradictory for an employer to require compliance with its usual standards of behaviour at a function, but also allow the unlimited service of free alcohol at the function”.

Leighton Boral had a responsibility to be aware of how the hotel would ensure the responsible service of alcohol at their event. The company should have placed a managerial representative from the company in charge of conduct at the function.

The Decision

Vice President Hatcher ruled that the dismissal was harsh, unjust and unreasonable based on a number of facts. He said the dismissal was disproportionate to the gravity of the conduct and it did not give regard to:

•             The ongoing consequences of the behaviour within the workplace;

•             Mr Keenan’s good employment record;

•             The manner of service of the alcohol;

•             The availability to an alternative consequence more proportionate to the conduct;

•             The lack of procedural fairness in relation to the bullying of the woman.

Vice President Hatcher further stated that the employer in this case had a responsibility in relation to ‘responsible service of alcohol’.

Mr Keenan applied for reinstatement, however Vice President Hatcher did not believe this would be an acceptable decision, given Mr Keenan’s role as a team leader and he would continue to be involved with the colleagues he allegedly harassed and bullied, which raised concerns for their ongoing health and wellbeing.

Vice President Hatcher held the matter over for further submissions from both sides.

Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156 (26 June 2015)

CCIQ Viewpoint

CCIQ will continue to review this case and update members following the final determination.

It is important that employers prepare appropriately for any work-related function, and safeguard your business from any potential disputes. 

•             Do your due diligence and ensure responsible service of alcohol will occur;

•             Make all employees aware of the company’s code of conduct and all applicable policies, and the grounds within this function which these will apply;

•             Educate managers on their supervisory role at the function;

•             If misconduct does occur; ensure you are procedurally fair in your investigation, and apply proportionate disciplinary actions.

 

Employers are encouraged to call the CCIQ’s Employer Assistance Team on 1300 791 988 or advice@cciq.com.au to discuss any employment related matter.

 

DISCLAIMER: This document is an information source only. Despite our best efforts, CCIQ makes no statements, representations or warranties about the accuracy or completeness of the information and disclaims responsibility for all liability for all loss or damage you might incur as a result of the information being inaccurate or incomplete in any way, and for any reason. The information contained in this document is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.

 

 

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