It’s not called the silly season because your children ask for unicorns from a mystical man who lives in one of the most desolate places on earth. It’s called the silly season because….
….a lot of people, including employees, tend to do silly things when the office merriment gets a little too merry.
Last year we reflected on the ghosts of Christmas functions past which included the case of Keenan v Leighton Boral Amey NSW Pty Ltd. The employee in that 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 you? what 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. The Commission later 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.
A year on, the Fair Work Commission is still dealing with unfair dismissal cases arising out of Christmas functions and it is important to reflect on these cases to ensure your celebrations don’t wind up before the Commission.
McDaid v Future Engineering and Communication Pty Ltd  FWC 343
The case of McDaid v Future Engineering and Communication Pty Ltd  FWC 343, involves an employee, Mr McDaid, who engaged in a series of unsatisfactory conduct at his employer’s Christmas function. Specifically, an intoxicated Mr McDaid:
- repeatedly harangued a fellow employee, Mr Sinna, in an aggressive manner, repeatedly pushing or poking him on the chest;
- subsequently pushed a fully clothed Mr Sinna into a swimming pool;
- later refused to leave the business premises when directed to do so; and
- initiated a fight (throwing a number of punches) with Mr Craig Davies (General Manager) by twice pushing him with such force that on the second occasion he lost his footing and crashed into the ground and a gate suffering minor injuries.
Not only did Mr McDaid secure a place on Santa’s naughty list, he was also subsequently dismissed from his employment with Future Engineering and Communication.
Before dismissing him, Future Engineering and Communication:
- provided Mr McDaid with notification of the reasons for his dismissal (section 387 (b) of the Fair Work Act);
- provided Mr McDaid with ample opportunities to respond to the reasons for which he was dismissed (section 387 (c) of the Fair Work Act); and
- allowed Mr McDaid to have a support person present at the meetings leading up to his dismissal (section 387 (d) of the Fair Work Act).
Mr McDaid later filed an application for unfair dismissal and unremarkably, the Commission held that the above conduct formed a valid reason for Mr McDaid’s dismissal. The Commission also determined that the process followed by Future Engineering and Communication was fair and reasonable and therefore Mr McDaid’s application was dismissed.
Interestingly, not unlike the case of Mr Keenan, the alcohol at the Future Engineering and Communication function was readily available for employees and there were no controls over the amount of alcohol individuals were able to consume.
The Commission in McDaid, however, did not take this element into significant consideration and instead focused squarely on the conduct of Mr McDaid and the reasonable process applied in the lead up to his dismissal. It was arguably the process adopted by the employer in Keenan that unravelled the dismissal and it therefore goes to show that employers need to be mindful that, regardless of how significant an employee’s conduct at a Christmas function might be, following a fair and reasonable process will also place you in a better position should your process ever be called into question by the Commission.
The decisions in Keenan and McDaid also serve as a cautionary tale for employers to ensure their Christmas functions are conducted in an appropriate and controlled manner and to proceed with fairness when disciplining employees for their not so merry conduct.
Employers should always consider having appropriate policies in place that deal with employee conduct whilst at social 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 or if you require advice about appropriately managing employee misconduct.