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Information of interest to our Clients and for the industry

Reinstated after Unfair Dismissal: what you could be at risk of this silly-season

They don’t call it the ‘silly-season’ for nothing; employees get too drunk, verbally abuse their boss, kiss their colleagues uninvited, and get sacked as a result… at least that’s what happened in the case of Keenan v Leighton Boral Amey NSW Pty Ltd [2015].

Here’s a summary… Mr Keenan attended his work Christmas function which was being held at a hotel, and had been organised and paid for by his employer. Mr Keenan drank approximately 13 drinks at the self-service bar and became intoxicated. During this time Mr Keenan told a company director and a senior manager to “f**k off”, asked a female colleague for her phone number and said to another, “who the f**k are you, what do you even do here?”

After the official work function concluded, Mr Keenan and other colleagues proceeded to the upstairs public bar and continued drinking. Whilst there, Mr Keenan described one female colleague as a “b***h”, and kissed another without invitation stating, “I am going to dream about you”.

Mr Keenan was dismissed as a result, to which he lodged an unfair dismissal claim and sought reinstatement. In reaching a decision, the Fair Work Commission determined that, although Mr Keenan’s language and behaviour toward his superiors was offensive, it was not sufficiently serious enough to justify dismissal.

As for Mr Keenan’s conduct in unwelcomely kissing another employee, although it would constitute sexual harassment under the Sex Discrimination Act 1984, the Commission considered that the incident was not connected to his employment, taking place ‘out of hours’, and therefore did not warrant his termination.

In reaching its decision, the Commission laid part blame of Mr Keenan’s intoxication on the employer stating, “it is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol. If alcohol is supplied in such a manner it becomes entirely predictable that some individuals will consume an excessive amount and behave inappropriately.” The Commission also criticised the employer for not placing anyone in a managerial position in charge of conduct, ensuring responsible service of alcohol was being carried out.

This case sheds a light on implications for employers around social functions and the risks involved, as well as what can happen when terminating an employee for poor behaviour. It’s important to know your rights, and those of your employees, get the facts, review your Policies and Procedures, and seek help from experts before making any decisions.

Related reading:
The biggest pitfalls in workplace drug and alcohol policies
Reducing the Risk at Christmas: Considerations when planning the work Christmas party

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