Work Christmas parties can be a legal mine field
for both employees and employers. The work Christmas parties of 2014 were
particularly wild and resulted in the unfair dismissal case Keenan v Leighton Boral Amey NSW Pty Ltd [2015]
FWC 3156 (Keenan). There are a number
of points both employees and employers can take from this case to ensure work
Christmas parties are fun, safe and stress free.
The facts in Keenan
Mr Keenan was employed as a Team Leader on the
Leighton Boral Amey Joint Venture (LBAJV) which maintained the roads in the
Sydney area. He was also an AWU delegate and an elected Work Health and Safety
Representative. The LBAJV held their 2014 work Christmas party on 12 December
in a private function room at the Novotel Sydney Brighton Beach Hotel. Beer,
wine, mixed drinks, finger food and canapés were provided by the Hotel. The
Christmas party event ended at 10pm. After this time, some employees stayed on in
the public area of the hotel. During and after the event, Mr Keenan engaged in
conduct that resulted in a number of complaints. After hearing evidence Vice
President Hatcher found that a number of incidents had occurred:
During the Christmas party
1. Inappropriate behaviour and language towards Mr Boggan – Mr Keenan told
Mr Boggan to “fuck off mate” when he
tried to join a conversation.
2. Bullying of Ms Stokes (first incident) – Mr Keenan
said to Ms Stokes “All those Board
members and managers are fucked, they can all get fucked. Kevin Badger is a
cunt” and asked Ms Stokes aggressively “what
do you even do...no seriously. Who the fuck are you? What do you even do here?”
Ms Stokes was offended and walked away.
3. Harassment of Ms Kennedy – Mr Keenan sat on a chair directly next to Ms
Kennedy and “interviewed” Ms Kennedy asking her about her marital status,
whether she is in a relationship, and how many children she has. Mr Keenan said
“I want to ask you for your number, but I
don’t want to be rejected”. Ms Kennedy was extremely uncomfortable and when
a colleague came to save her from the situation she left the Christmas party.
After the Christmas party
1. Further harassment of Ms Stokes – after the Christmas party had
officially ended at 10pm a number of staff members moved to the public bar area
and purchased their own drinks. Ms Stokes was sitting in the courtyard area
when Me Keenan approached, spoke to Ms Stokes, moved closer and closer, and
tried a number of times to touch the dimple on Ms Stokes’ chin.
2. Bullying of Ms Cosser (first incident)– Ms Cosser was talking to Kevin
Badger. Mr Keenan came over after the conversation had ended and said “why the fuck are you talking to Kevin?”
3. Bullying of Ms Cosser (second incident) – Mr Keenan was talking to Ms
Cosser in the public terrace area. Mr Keenan said “I used to think you were a stuck up bitch, but Ryan says you are
alright. If Ryan likes you then you must be ok”. Ms Cosser was upset and
cried by the incident.
4. Sexual harassment of Ms O’Reilly – Mr Keenan was sitting next to Ms
O’Reilly at the bar when he suddenly grabbed Ms O’Reilly’s face and kissed her
on the mouth.
5. Sexual harassment of Ms Kearns – while a group of colleagues were
waiting for taxis, Mr Keenan said to Ms Kearns “My mission tonight is to find out what colour your knickers are”. Ms
Kearns replied “They are white, touch my
skirt and I will kill you”.
At a meeting held on 18 December 2015 the eight
allegations were put to Mr Keenan, but evidence showed that the factual content
of most of the allegations was not identified in a way that allowed Mr Keenan
to give an informed response. LBAJV made the decision to terminate Mr Keenan’s
employment relying only on allegations regarding the sexual harassment of Ms
Kennedy and the sexual harassment of Ms O’Reilly. This decision was put to Mr
Keenan on the 20 January 2015. Mr Keenan had a representative from the AWU,
with him for both the meetings. At both meetings Mr Keenan and his
representative suggested a number of alternatives to dismissal.
Consideration
by Vice President Hatcher
VP Hatcher had to decide whether Mr Keenan was
unfairly dismissed. LBAJV relied on the allegation of sexual harassment towards
Ms Kennedy during the Christmas function and the sexual harassment of Ms
O’Reilly after the Christmas party to justify the dismissal. VP Hatcher divided
his consideration of whether Mr Keenan was unfairly dismissed into whether
conduct during the event could justify dismissal and whether conduct after the
official Christmas party had ended justified dismissal.
1. Conduct after the Christmas party
“Out of hours” conduct can constitute a valid
reason for dismissal in specific circumstances where the conduct complained of
is “of such gravity or importance as to indicate a rejection or repudiation of
the employment contract by the employee” (Rose
v Telstra Corporation Limited [1998] AIRC 1592). Where an employer is
vicariously liable for the conduct of an employee outside work hours, this
creates a sufficient connection between the conduct and the employer to come
within the scope of legitimate employer supervision. VP Hatcher therefore had
to determine if the conduct at the upstairs bar after the Christmas party was
unlawful sexual harassment for which LBAJV could be vicariously liable.
Mr Keenan’s conduct in suddenly kissing Ms O’Reilly
is clearly sexual harassment within the meaning of s.28A of the Sexual Discrimination Act 1984. For the
employer to be vicariously liable for sexual harassment of an employee, the
employee must have done the sexual act “in connection with the employment of
the employee” (s.109 SD Act). The test for vicarious liability is not a “but
for” test. There must be some connection which is more than an incidental
connection (Keenan [101]). VP Hatcher
found Mr Keenan’s conduct in the upstairs bar was merely incidental to his
employment and LBAJV were not vicariously liable, as the social interaction
which occurred was not in any way organised, authorised, proposed or induced by
LBAJV.
Outside of the sexual discrimination context, VP
Hatcher found none of the conduct that occurred in the bar after the Christmas
party would justify dismissal, as it was private conduct and there was no
evidence the capacity of the second person to perform their work at LBAJV was
affected.
2. Conduct during the Christmas party
Prior to the Christmas party, employees were
informed of the time boundaries (6pm to 10pm) and physical boundaries of the
function and reminded that normal work standards of conduct would apply at the
function. VP Hatcher found Mr Kennan’s interactions with Ms Kennedy was “a
boorish attempt by a drunk to lay the foundation for a future relationship” but
was not sexual harassment and not sufficiently serious to justify dismissal.
VP Hatcher found that the most serious allegation
was Mr Keenan’s conduct towards Ms Stokes (“What
do you even do?...No seriously. Who the fuck are you? What do you even do
here?”),
as it was entirely unprovoked, aggressive,
intimidatory behaviour from an intoxicated middle aged man to a much younger
and smaller female. This was a valid reason for dismissal.
Although VP Hatcher found a valid reason for
dismissal existed, LBAJV were not able to rely on this reason. Section 387 of
the Fair Work Act 2009 lists certain
factors that must be taken into account when determining whether a dismissal
was harsh, unjust or unreasonable. The following factors were taken into
account in determining Mr Keenan’s dismissal was unjust:
1. There was no evidence Mr Keenan’s conduct towards Ms Stokes had ongoing
consequences for the workplace including Ms Stoke’s capacity to perform her
work.
2. Mr Keenan had a good employment record in excess of seven years.
3. Mr Keenan’s behaviour was isolates and aberrant in nature.
4. Alcohol was an exacerbating factor: “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 at a function”. LBAJV took no steps to satisfy itself how the
Hotel would discharge its responsible service of alcohol obligations. LBAJV did
not place anyone with managerial authority in charge of the function, but
essentially let it run itself.
5. There were other disciplinary alternatives available other than
dismissal, such as a ban from future Christmas parties and a final warning. The
factual basis of all the allegations was not put to Mr Keenan.
6. An employee who had displayed similar misconduct (saying “do you want us to get our cocks out and
measure them too?” to a female employee) merely received counselling, and
it was very inconsistent to dismiss Mr Keenan where the conduct was similar in
nature and seriousness.
Lessons to
learn – employees
1. Attendance at a work Christmas party will usually be considered to be “during
working hours”, and the employer will be able to regulate the employee’s
behaviour;
2. The same code of conduct and standards of behaviour that apply at work
will be required at a Christmas function - behaviour that is not appropriate at
work is unlikely to be appropriate at a work Christmas function;
3. If you are drunk at a Christmas party and misbehave, the court is likely
to favour the recollections of other witnesses over your evidence, as a drunk’s
recollection will generally be unreliable;
4. If allegations are made against
you, you are entitled to procedural fairness such as having a support person
with you during meetings, having the factual basis for the allegations put to
you, and being given an opportunity to respond.
Lessons to
learn – employers
1. Remind staff prior to the event of the standard of behaviour expected at
the event. Remind staff members that the Code of Conduct and other policies
will apply. In Keenan, VP Hatcher
said the fact LBAJV had made it clear that compliance with its standards of
behaviour at the Christmas party was expected, was critical to ensure this standard
of behaviour was later enforceable.
2. Ensure the official start time, end time and geographical limits of the
Christmas party are made known to employees.
3. Employers should take steps to ensure alcohol will be served
responsibly. If an event is being held at a hotel, employers should make
inquiries and satisfy themselves of the steps the hotel will take to ensure the
responsible service of alcohol. Employers should make it clear alcohol is not
to be “self-serve”.
4. Ensure someone of managerial level is at the event to be a contact
person and be responsible for the event. It is not sufficient to let the event
“run itself”.
5. Complaints of employee conduct should be handled consistently. The
substance of each allegation should be put to the employee, not by asking open
questions but by putting the factual allegations of the complaint to the
employee.
Have fun at your 2015 Christmas party, but make
sure you get it right. One mistake can make the matter drag on for months. The
judgment in Keenan was not handed down
until 26 June 2015, six months after the Christmas party occurred. This is
relatively quick for the resolution of a legal matter. Don’t let this happen to
you.
Remember that this is a blog post, not legal advice. Seek independent
legal advice before relying on anything in this blog post.
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