Too Much Christmas Spirit
The Christmas function was held in a private function room at a hotel, on 12 December 2014 with the time set for the event as 6pm to 10pm. Prior to the function the employer made it clear that compliance with its standards of behaviour was expected from all those in attendance. The function ended at 10pm as planned and a number of staff moved upstairs to the public bar area of the hotel.
Mr Keenan was heavily intoxicated at and after the function and the specific conduct he engaged in that was the subject of his application included, but was not limited to, the following:
- That at the function he said to female colleague, Ms Stokes “What do you even do?” When Ms Stokes laughed Mr Keenan further stated “no seriously, who the f*** are you? What do you even do here?”
- That at the function Mr Keenan asked female colleague Ms Kennedy for her phone number numerous times.
- That after the function Mr Keenan said to female colleague Ms Cosser “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.”
- That after the function, Mr Keenan reached forward and grabbed the face of female colleague Ms O’Reilly with both hands and kissed her on the lips. Following this incident, Mr Keenan said to Ms O’Reilly, “I’m going to go home and dream about you tonight.”
- That after the function, whilst waiting at the taxi stand, Mr Keenan said to female colleague Ms Kearns “my mission tonight is to find out what colour knickers you have on.”
On the Monday following the Christmas function a number of employees approached management regarding Mr Keenan’s conduct.
Allegations were subsequently put to Mr Keenan for his response. However, in the decision there was criticism from the Fair Work Commission (‘FWC’) regarding the lack of detail and particulars provided to Mr Keenan regarding his conduct. For example, one allegation put to Mr Keenan was ‘Sexual harassment of Ms O’Reilly’ (compare number 4 above).
The employer made a decision to dismiss Mr Keenan and sought to rely on his conduct of sexually harassing Ms Kennedy and Ms O’Reilly as the reason for this.
It was held by the FWC that Mr Keenan was unfairly dismissed, for a number of reasons.
Notwithstanding that the FWC was satisfied that there was a valid reason for the dismissal i.e. Mr Keenan’s conduct toward Ms Stokes as outlined at 1 above, the FWC held that Mr Keenan’s conduct did not have any significant ongoing workplace consequence. That is, there was no evidence that his conduct toward Ms Stokes, which the FWC held was the only valid reason for his dismissal, had any ongoing consequence for the workplace, in particular Ms Stokes’ capacity to perform her work.
The FWC determined that the dismissal was also unfair on the basis that Mr Keenan had a good employment record; his conduct appeared to be out of character; he was intoxicated; the function had an ‘open bar’ which the employer failed to exercise any control over; and there were a number of alternatives to his dismissal, such as demotion and banning him from further Christmas functions.
Of note, the FWC held that although Mr Keenan’s conduct, as outlined at allegations 4 and 5, satisfied the definition of sexual harassment contained in the legislation, having occurred after the Christmas function, it was conduct that occurred in “essentially a private social setting.” Accordingly, it could not constitute a valid reason for his dismissal.
Lessons for employers
- Particularise allegations of misconduct. It is common for employers to provide employees with allegations that are somewhat vague in nature either intentionally, perhaps to catch the employee ‘off guard’, or unintentionally. An opportunity to respond to the specific case against the employee is a vital aspect of procedural fairness and is set out in the Fair Work Act 2009 as a consideration the FWC must take into account when determining whether a dismissal is ‘unfair’.
- Do not assume that the misconduct in question is sufficient to terminate. The FWC held there was a valid reason for Mr Keenan’s dismissal. However, in unfair dismissal proceedings, the FWC is entitled to take into account ‘any other matters [it] considers relevant.’ In this case it included the fact that the Christmas function had an unregulated, open bar.
- Be careful when considering disciplinary action for conduct occurring outside of the workplace and outside of work hours. This decision indicates the importance of this.
For specialist advice on all employment matters, please contact Workplace Legal on (03) 9972 4950.