Drunken Escapades: Can an employee be dismissed for behaving badly at a work function?

In Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156, the Fair Work Commission found the dismissal of an employee who had acted offensively to his employer and colleagues at a Christmas function, to be harsh and unjust.

Stephen Keenan attended the official Christmas function of his employer, Leighton Boral Amey NSW Pty Ltd (“Leighton”), on 12 December 2014, where numerous complaints followed the function from other employees.

Leighton conducted an investigation into Mr Keenan’s behaviour, which required Mr Keenan to participate in two meetings to discuss his behaviour.

The investigation identified the following incidents of misconduct during the function:

• Said “F*** off mate!” to one senior manager, and told another to “F*** off;

• Asked a junior female colleague, “Who the f*** are you? What do you even do here?”;

• Caused a female colleague to cry by telling her “I thought you were a stuck up B****, but Ryan says you are alright. If Ryan likes you then you must be ok”; and

• Causing another colleague to leave the function by saying “I want to ask for your phone number, but I don’t want to be rejected”.

Following the function, a large number of employees, including Mr Keenan, relocated to another bar, which had not been hired for the function, and then later to a taxi rank and onto a second venue, which Mr Keenan was denied entry to.

The investigation identified the following incidents which occurred after the official function:

• Suddenly grabbing a female employee’s head at a taxi rank and kissing her on the mouth;

• Telling a female employee that “I’m going to go home and dream about you tonight”; and

• Telling a female employee that his “mission tonight is to find out what colour knickers you have on”.

Leighton determined that Mr Keenan had engaged in misconduct that was sufficiently serious to warrant termination and he was dismissed and paid in lieu of notice.

Mr Keenan brought an unfair dismissal claim against Leighton claiming he had been unfairly dismissed.

Vice President Hatcher of the Fair Work Commission (“the Commission”), took a fairly narrow view of which allegations could be relied upon as being valid grounds for dismissal.

The Commission found that the misconduct which occurred following the official close of the function, was found not to be relevant to the employee’s relationship with the employer, and was better characterised as private activity and therefore could not constitute a valid reason for dismissal.

The Commission, while considering the various witness accounts, found that it could not rely on Mr Keenan’s recollection of events given his substantial intoxication.

The Commission made scathing remarks regarding the employer’s failure to regulate the consumption of alcohol during the function, and found that there was no evidence that Mr Keenan or any other employee had been refused alcohol for being too intoxicated.

Despite the unregulated service of alcohol, the Commission found that no vicarious liability arose for the employer, because Mr Keenan’s conduct was not connected with his employment and was not “organised, authorised, proposed, or induced by his employer”.

The Commissioner held that neither swearing at a director, or repeatedly asking for a colleagues’ number, were held to be serious enough to be a valid reason for dismissal, but asking an employer “Who the f*** are you? What do you even do here?” did create a valid reason for dismissal.

Regardless, the Commission considered that in the broad context of Mr Keenan’s good record, his state of intoxication, the lack of any work consequences, the isolated nature of the incident, the existence of effective disciplinary alternatives others than dismissal, his dismissal was unfair.

The Tribunal concluded that the dismissal was unjust because the bullying statement had not been put to Mr Keenan during Leighton’s investigation, and he was not provided a proper opportunity to respond.

The Commission also heard that following a similar event where a senior manager had made a similar comment to a junior colleague, Leighton did not pursue the dismissal of that employee.

While the decision is certainly a stark reminder for employers to take adequate precautions to control the service of alcohol and supervise employees during events, it should also serve as a reminder to employees to dial down the festivities which might have the potential to tarnish otherwise successful careers.

For employment advice in this area, McLaughlins Lawyers on the Gold Coast can assist employers with respect to their rights and obligations under their Employee Agreements and at law with respect to workplace bullying and related disciplinary issues.

Author: Joshua Rath

Partner: Ian Kennedy

Date: 26/10/2015