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What can we learn from the ghosts of Christmas functions past?

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Tis the season to be merry and join your colleagues for a much deserved Christmas function to celebrate the year that was and the year to come.
But while employers are already in the midsts of holding Christmas functions (with a disgruntled employee in a Santa Clause costume as required), it is important to reflect on the ghosts of Christmas-functions-past and ensure your function does not form part of the Fair Work Commission’s yearly queue of cases dealing with the not-so-cheery patrons of a Christmas function gone wrong.
Keenan v Leighton Boral Amey NSW Pty Ltd
Twas the night of Leighton Boral Amey NSW Pty Ltd’s (Leighton’s) annual Christmas function where the alcohol was free flowing and self-service was the only kind of service for the celebratory night in the lead up to Christmas.
The employee in this case, Mr Keenan, took full advantage of the festivities and the lack of supervision and control of his employer to monitor the alcohol consumption and behaviour of its employees. After a considerable amount of alcohol consumption, a very intoxicated Mr Keenan proceeded to:

  • tell a director of Leighton’s to “f##k off”;
  • tell another male colleague to “f##k off”; 
  • ask a female colleague “who the f##k are youwhat do you even do here?”; and
  • repeatedly ask for the phone number of a female colleague, questioned her about her relationship status and family and said "I want to ask for your number, but I don’t want to be rejected"

Once the function had reached an end, Mr Keenan later, whilst attending a public bar, proceeded to continue drinking and:
  • tried to touch the face of a female colleague; 
  • told a female colleague “I used to think you were a stuck up b###h but Ryan says you are alright.  If Ryan likes you then you must be ok”;
  • grabbed and kissed a female colleague on the lips and told her that he would be dreaming about her later that night; and 
  • told a female colleague that his mission for the evening was to find out what colour underwear she was wearing.

As you can reasonably deduce, Mr Keenan was later dismissed from his employment on the grounds that he had engaged in two counts of sexual harassment.
Mr Keenan later filed an application for unfair dismissal with the Fair Work Commission contending that his dismissal was harsh, unfair and unjust and sought reinstatement.
The decision
Interestingly, the Commission found that the dismissal was harsh and unjust on the grounds that:
  • the incidents forming the basis for Mr Keenan’s dismissal were not sufficiently connected to his employment and did not sufficiently impact upon Leighton and its employees (given that the events occurred after the Christmas function at a different venue);
  • Mr Keenan's conduct towards his female colleague at the function, while unwelcome, did not constitute sexual harassment and were not a valid reason for dismissal;
  • Mr Keenan had a clean employment record and the conduct, in the Commission’s view, was out of character;
  • the employer, in the eyes of the Commission, was partly to blame for allowing the function to occur in the manner that it did (being uncontrolled self-service of alcohol). Vice President Hatcher notably said:
“in my view 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.”
  • the Commission was of the view the more appropriate response ought to have been to demote Mr Keenan, issue him with a final warning and require him to write an apology to the employees involved together with banning him from all future functions where alcohol is served.

The decision in Keenan is an interesting one and will serve as a cautionary tale for employers to ensure their Christmas functions are conducted in an appropriate and controlled manner and to proceed carefully when considering allegations against employees where the conduct in question occurred outside the workplace.
Employers should consider having appropriate policies in place that deal with employee conduct both during and after work functions and ensure employees are made aware of the expectations they are required to uphold whilst consuming alcohol and partaking in festivities.
Do not hesitate to contact Clifford Gouldson Lawyers’ workplace team should you have any questions regarding the content of this update or if you are interested in implementing a policy for workplace functions.

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