Australia: Catastrophic falls from grace: Christmas parties, intoxication and dismissals

Last Updated: 4 December 2016
Article by Murray Thornhill

Last year we reported on a case where an employee's dismissal for appalling behaviour at the work Christmas Party was found to be unfair. However, during 2016 two further decisions involving drunken partying among colleagues have wound back what seemed to be clear lessons from Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 (The Keenan Case).

Classic Christmas Party Disaster

As a reminder, here is a list of the offending behaviour Mr Keenan engaged in at his Christmas party in December 2014:

  • Said "[BLEEP] off mate!" to one senior manager, and later told another to "[BLEEP] off";
  • Said to a junior female colleague, "Who the [BLEEP] are you? What do you even do here?";
  • Caused a female colleague to cry by saying "I thought you were a little [BLEEP] but you know you're okay and I like you."
  • Made another colleague feel so uncomfortable that she left the function because he intrusively inquired into her personal circumstances and then said "I want to ask for your phone number, but I don't want to be rejected"

After the function ended Mr Keenan joined a group of employees who decided to continue to socialise in another part of the Hotel, and then later went together in taxis to another venue. Mr Keenan was ultimately refused entry to the second venue, however prior to that occurring he:

  • unexpectedly kissed an employee;
  • inappropriately touched another colleague on her chin,
  • made rude and abrasive comments to other colleagues; and
  • Said to a female colleague "My mission tonight is to find out what colour knickers you have on".

Somewhat surprisingly the Fair Work Commission (FWC) determined that Mr Keenan's only misconduct was the bullying statement

"Who the [BLEEP] are you? What do you even do here?"

and that none of the other conduct formed a valid reason for dismissal. The fact that Mr Keenan had received no prior warnings and had been of otherwise good character, along with the fact that other misconduct by employees during the year had not resulted in dismissal weighed together to result in a determination by FWC that Mr Keenan had been unfairly dismissed.

Qantas Pilot's Catastrophic Fall From Grace

After two years of litigation in firstly the Fair Work Commission but also on appeal to the Federal Court the case of Mr Steven Gregory v Qantas Airways Limited [2016] FWCFB 2108 (The Qantas Case) was finalised in May this year. Mr Gregory was a long serving Qantas pilot who unsuccessfully argued that while on a layover in Santiago, Chile his drink was spiked causing him to become unusually disinhibited with the result that he groped his female co-pilot in a taxi on the way back to their hotel.

Mr Gregory managed to get himself to his hotel room after exiting the taxi, however he passed out on the floor, semi-naked with the door ajar – an event that was documented by a photograph the flight Captain took.

Mr Gregory submitted to a drug test the day after the incident which detected marijuana in his system. After hearing expert drug evidence, the Commission rejected the suggestion that Mr Gregory's drink was spiked and found instead that Mr Gregory had more than likely knowingly smoked marijuana during a short separation from his colleagues and that in doing so he was responsible for his subsequent loss of control and sexual harassment of his the taxi which was found to be a valid reason for his dismissal.

Among the appeal grounds were that not enough weight was placed on the fact that Mr Gregory had served as a Qantas pilot for over 20 years with no other incident of misconduct, and that the female co-pilot had readily accepted his apology the next day and made no formal complaint of her own about the Mr Gregory's conduct. These grounds of appeal were ultimately dismissed it was noted that while Mr Gregory had suffered a "catastrophic fall from grace" his misconduct was of sufficient seriousness to warrant his dismissal.

Poolside Shenanigans and a Violent Confrontation

The second case of note in 2016 regarding drunken misconduct at work is Damien McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343 (The McDaid Case) and involves another Christmas party disaster during last year's silly season.

Mr McDaid, a Project Manager was caught on CCTV pushing and punching his General Manager who was trying to get Mr McDaid to leave the party after he had pushed a mild mannered colleague into a swimming pool fully clothed.

Mr McDaid had a history of behaving aggressively towards colleagues and his dismissal was held to be fair.

Comparing Cases of Disgrace

The employees in both The McDaid Case and The Qantas Case were ultimately held to have been fairly dismissed. At first blush, the misconduct both those employees engaged in was not obviously more serious than that of Mr Keenan.

Mr Keenan's intoxication and subsequent rude and inappropriate remarks at the Christmas party function were not excused, however Vice President Hatcher made it clear that employers could not expect appropriate behaviour while also providing unlimited and unchecked access to alcohol at a Christmas function. In other words, Mr Keenan's intoxication was somewhat the employer's responsibility.

This meant that Mr Keenan's statement:

"I thought you were a little [BLEEP] but you know you're okay and I like you"

was dismissed as a valid reason for dismissal by Vice President Hatcher because;

"Mr Keenan, expressing himself with a drunk's frankness, no doubt thought that he was paying Ms Cosser a backhanded compliment."

The same reasoning did not save the drunken Mr McDaid who had also clearly consumed too much alcohol freely provided by his employer at a function held at the workplace before he pushed his colleague into the pool in an aggressive but arguably skylarking manner.

However, at this point - unlike Mr Keenan's employer who did not monitor his behaviour at any stage - Mr McDaid's General Manager stepped in after the poolside shove and directed Mr McDaid to leave the party as a result of his inappropriate behaviour. In response, Mr McDaid made the fatal decision to push and punch his boss to the point of knocking him to the ground and causing significant injury. It was the shocking violence that came in response to a reasonable direction by an employer trying to control and monitor appropriate behaviour at the Christmas party that was found to warrant Mr McDaid's summary dismissal.

Mr Keenan's unwanted sexual advances towards his colleagues after the Christmas party ended were held not to be valid reasons for dismissal because the work function had ended. However, in the Qantas Case Mr Douglas' sexual advance toward his co-pilot was clearly considered to be work related sexual harassment that warranted dismissal. The flight crew's night out in Santiago was still 'work related' because the employees remained their employer's responsibility while they transited in an overseas port.

The distinction is somewhat of a legally fine one and is largely based on whether the employer is in control of, liable or responsible for the safety and wellbeing of an employee at the time misconduct occurs. Essentially, if an employee is away on a work conference or at any event by invitation or direction of his or her employer then any sexual harassment of colleagues that occurs is likely to be 'work related' until such time that the event has clearly ended or the employee is once again responsible for themselves and owes no duty to the employer.

Tips for Employers

The new developments in this year's 'Disgrace Cases" do not change best practice for employers holding Christmas functions.

  • Remember you have a duty of care to your employees at any work related event.
  • Clearly outline the start and finish times for the function and be sure to include a statement about expectations of acceptable behaviour and personal responsibility.
  • Do not rely solely on a venue's undertaking to adhere to responsible service of alcohol requirements.
  • Have strategies in place for monitoring employee behaviour at work functions, including what immediate action may be taken to respond to unsafe or unacceptable conduct (e.g. call a taxi and/or direct an employee to leave).
  • Do not assume that clearly offensive behaviour at a work function necessarily warrants dismissal. It is important to give careful consideration to all of the surrounding circumstances, make no proclamations about whether the person is fired in the heat of the moment.
  • If an employee misbehaves, seek early legal advice about how to conduct an effective investigation and ensure your disciplinary process results in a decision that cannot be successfully challenged.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions