The Fair Work Commission decision in Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156 highlights a number of issues for employers to consider as we head into the festive season.
The Facts
The case concerned the conduct of an employee, Mr Keenan, during and immediately after a Christmas function organised by his employer (the Company). The function was held at a hotel between the hours of 6 pm to 10 pm. During these hours, drinks were served to guests without charge. Mr Keenan had approximately 10 drinks, and was at no point refused service of alcohol. After a certain point in the night, he and other employees were even able to help themselves to beverages.
During the function, Mr Keenan verbally abused several other employees, including a senior manager. After the function ended, he and some other employees went to the hotel bar upstairs from where the function was held. It was there that Mr Keenan kissed a female colleague unexpectedly on the lips.
Mr Keenan was subsequently dismissed after the Company met with him and put to him allegations of misconduct. Mr Keenan brought an unfair dismissal claim and sought reinstatement.
The Decision
Vice President Hatcher of the Fair Work Commission found that the dismissal was unfair.
It was held that, while Mr Keenan had committed sexually harassment, the relevant incident occurred after the function ended, and was therefore not sufficiently connected to Mr Keenan's employment to provide a valid reason for dismissal. The Commission also found the Company had not properly communicated to Mr Keenan the allegations in relation to his conduct during the function.
Consideration of the Role of Alcohol
In the decision, the Commission was highly critical of the Company for the running of the Christmas function, which was found to have 'exacerbated' the effects of alcohol on Mr Keenan's behaviour.
Vice President Hatcher stated the irresponsible service of alcohol 'was ultimately a result of the fact that [the Company] did not place anyone with managerial authority in charge of the conduct of the function, but essentially let it run itself.' He went on to note:
Ultimately, it was found that 'the role of alcohol at the function weighs, at least in a limited way, in favour of a conclusion that the dismissal was harsh.'
What this means for Employers
An important factor in the Keenan decision was that part of the employee's conduct occurred 'out of hours'. However, given the Commission's views on 'unlimited service of free alcohol' in the context of unfair dismissal, the decision may have broader implications for employers.
In light of this decision, employers should consider:
- putting measures in place to ensure the responsible service of alcohol at work functions;
- appointing an employee with managerial authority to be 'in charge' at work functions; and
- establishing a clear distinction between official work functions and other functions that the organisation does not organise or encourage staff to attend.
Where an employee commits or is suspected of committing misconduct at, or immediately following, a work function, it is recommended that the employer seek advice before taking any action against the employee.
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.
