Employers should note that the circumstances in which you can sack a worker for terrible behaviour at a Christmas party, or a work function, are not as obvious as one may think.
A legend in my family was the story of a bloke in the 1970s and 80s who at the office Christmas party, every single year, would drink loads, get obnoxious, tell the boss to get f****d and then resign in spectacular fashion. He would then return sheepishly, cap in hand, to get his job back each year.
Times have changed and such behaviour would certainly not be tolerated these days.
An important Fair Work Commission decision, Keenan v Leighton Boral Amey Joint Venture  FWC 3156, involved a Mr Keenan and his case for unfair dismissal compensation against his employer, Leighton Boral Amey Joint Venture.
At the work Christmas party, an intoxicated Mr Keenan acted poorly. He propositioned female co-workers, even kissing one uninvited. He was verbally abusive to his superiors. After an investigation, he was fired.
The commission found that the termination was harsh and unfair. They accepted that Mr Keenan should have been disciplined and counselled, but not terminated in the circumstances. An important factor was that the employer had provided free and unlimited alcohol and thus was partly responsible.
Further, a number of Mr Keenan’s indiscretions took place after the office party at other venues and were outside the scope of his employment. This latter factor has been decided differently in other cases.
The issue of employer responsibility is highlighted in a large number of cases in which employees have successfully obtained compensation for injuries sustained or for wrongs (such as sexual harassment, bullying and discrimination) that occurred at Christmas parties and work functions.
A drunken bunch of middle managers and junior staff is a volatile mix. The managers still have a position of power over the junior staff and inhibitions are down. Sexual harassment or even sexual assault can occur and employers can become liable.
So, what is an employer to do? Christmas parties and work functions are undoubtedly an important part of Australian business culture and can be fantastic events to say thank you to staff, raise morale and promote camaraderie among workers.
Employers can adopt a few simple strategies to help stay out of trouble and out of court:
Have a clear written policy about what you consider to be acceptable behaviour and provide appropriate warnings about discipline and termination for breach of the policy.
It should be made clear to staff that a work function is not the time to “have a big night” and that obvious intoxication will result in them being asked to leave the function.
Another stipulation could be that staff are expected to leave the venue for home once the event is over. This direction should particularly be aimed at those in positions of power over junior staff. So, middle management should head home early.
2. Social media
Have a clear social media policy. Your reputation can be severely damaged by inappropriate imagery connected to your business being circulated on social media.
Some employers have a policy that no images from the party are to be posted online by anyone other than the employer.
Don’t serve too much alcohol! It seems to be an Aussie trait that we always make sure there is more than enough grog for a party.
But for an office Christmas party you might have light beer, wine and no spirits, and plan for the alcohol to run out or for the bar tab to be cut off well prior to closing time.
Another idea is to have a breakfast or a lunch function, or to invite the families and children of staff along. Such functions rarely end up at a bar in the city at 2am.
4. Designate someone to stay sober
Employers should ensure there is a designated person, probably the boss, who stays completely sober and keeps a watchful eye, ready to take action if there is any unwanted behaviour.
5. Other venues
Many incidents occur in a grey zone. After the office party has finished at its venue, the staff and managers often party on at other venues.
This is where intoxication continues and unsavoury events can occur. It is always difficult to ascertain when the employer-controlled office party ends.
A good plan is either to have a policy that the staff go home once the office party ends, or to have the sober boss accompany the staff to the other venues.
So, the party is over and there is a problem: an employee’s behaviour was unacceptable.
An important step is to take action very promptly. Leaving it to mid-January to start an investigation or take action is often too late, and lacks the procedural fairness required to be given to an employee.
You will need to interview those involved in the incident. Take notes. You will then need to put the allegations to the employee. Make a decision and put your reasoning in writing very carefully.
You will appreciate that the time and stress of an investigation is very detrimental to an employer, so prevention is always better than a cure.
Nathan Luke is a lawyer at Stacks Law Firm.
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