Work Christmas parties – lessons from the 2015 Christmas season

Christmas season is here again meaning there will be a string of work Christmas parties and functions for employees to attend. In December last year I wrote about Keenan v Leighton BoralAmey NSW Pty Ltd[2015] FWC 3156, a complicated unfair dismissal case resulting from an employee’s inappropriate behavior both before and after a work Christmas function in 2014. There still appears to be a need to educate employees about behavior at work Christmas functions, as the wave of unfair dismissal cases resulting from work Christmas parties continues. In this blog post I will summarize the case of McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343.

Key principles

A work Christmas party is a work event, meaning the employer’s policies and codes of conduct will generally apply to employees at work Christmas parties. Behavior management and disciplinary processes for breach of a policy or code of conduct will be the same for behavior at a work Christmas party as for behavior during ordinary work hours.  Inappropriate behavior at a work Christmas party can be sufficient reason for dismissal, particularly where the behavior effects the safety and welfare of other employees.

Work Christmas parties ordinarily occur within a set time frame. Behavior that occurs after a work Christmas party has ended at an unofficial after party will not ordinarily be considered behavior that occurred in the course of employment. However, it is still possible for an employee to be dismissed from their employment for conduct that occurs outside the workplace.

McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343

Facts

Mr McDaid was employed by Future Engineering and Communication Pty Ltd (FEC) as a Project Coordinator. FEC held a staff Christmas event on 19 December 2014 which involved a day of go-karting followed by a Christmas party on FEC premises. FEC provided alcohol, soft drink and food, and did not provide any controls on the amount of alcohol consumed. The party was held in an area where there was a swimming pool. Although the conduct occurred on 19 December 2014 and Mr McDaid’s employment was terminated on 17 March 2015, and an application for unfair dismissal must be made within 21 days, a decision was not made until 2016 due to unsuccessful attempts at conciliation.

Mr McDaid had a history of behaving in an aggressive manner towards other employees in the workplace. He attended the go-karting event and then quickly became intoxicated at the Christmas party. He was aggressive towards Mr Sinna, a Design Engineer at FEC and pushed him several times in the chest. Mr Davies, FEC’s General Manager, intervened at one point and told Mr McDaid he should go home. After a short period, Mr McDaid continued to harangue Mr Sinna, became physically aggressive towards Mr Sinna and threw Mr Sinna into the swimming pool fully clothed.

Mr Davies approached Mr McDaid and told him to leave the premises. Mr McDaid then pushed Mr Davies twice, on the second occasion with such force that Mr Davies was propelled backward, hit the front gate of the premises and suffered some minor injuries. After Mr McDaid helped Mr Davies to his feet the two men started to exchange blows until Mr Davies hit Mr McDaid on the side of the head.

Mr McDaid’s employment with FEC was terminated on 17 March 2016 for reason of his behavior at the FEC work Christmas party. Mr McDaid filed an application for unfair dismissal with the Fair Work Commission. Conciliation failed and the matter was heard by Commissioner Williams.

Legal analysis

A national system employee to which the Fair Work Act 2009 (Cth) (Fair Work Act) applies is protected from unfair dismissal if they have served the minimum employment period (6 months or 12 months for small business employers), and if they earn less than the high income threshold (currently $138,900 per year) (see s.382 Fair Work Act). Mr McDaid satisfied this criteria. Section 385 provides that an unfair dismissal will have occurred where:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)  the dismissal was not a case of genuine redundancy.

In Mr McDaid’s case, the issue to be determined was whether the dismissal was harsh, unjust or unreasonable. Section 387 provides eight criteria the FWC must take into account when determining whether a dismissal was harsh, unjust or unreasonable:

1 Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

The three incidents that occurred during the Christmas party were each alone valid reason to dismiss Mr McDaid. Haranguing Mr Sinna, verbally abusing him, pushing him and throwing him in the pool was a valid reason for dismissal. Refusing to leave the property when directed to do so by the General Manager was a valid reason for dismissal. Initiating a fight with Mr Davies, and pushing him into the gate with such force he sustained minor injuries was a valid reason for dismissal.

2. Whether the person was notified of that reason

Mr McDaid was notified FEC was investigating his conduct at the Christmas party. Over a number of meetings between FEC and Mr McDaid in January 2016 and March 2016 it was made clear to Mr McDaid his behavior at the Christmas party was being investigated. After Mr McDaid was terminated on 17 March 2016 he was notified in writing of the reason for his dismissal.

3. Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

Mr McDaid was given numerous opportunities to respond. On the morning meeting held on 17 March 2016 he was given full opportunity to explain himself. At this meeting Mr McDaid read his version of events from a written statement he had prepared. FEC told Mr McDaid his version conflicted with other accounts and that they would respond later that day. Mr McDaid’s employment was terminated later that day on 17 March 2016.

4. Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

Mr McDaid had his support person Mr Horner, a Field Manager at FEC, present at discussions including those held on 17 March 2016, the date of dismissal.

5.  If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal

The reason for dismissal was conduct at the Christmas party, not unsatisfactory work performance.

6. The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and

7. The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

FEC designs, manufactures, and installs communication towers, powerline infrastructure and associated equipment throughout Australia and has about 60 employees. As a medium sized business with no dedicated human resource employees the procedures followed were appropriate.

8. Any other matters that the FWC considers relevant.

The FWC noted Mr McDaid’s history of aggressive behavior towards colleagues in the workplace and that the behavior at the work Christmas party was not an isolated incident. The FWC also noted Mr Davies’ behavior on the night, especially given his role as General Manager. However, the FWC concluded the fight between Mr McDaid and Mr Davies was instigated by Mr McDaid and Mr Davies was therefore acting in self-defence.

Commissioner Williams dismissed the application and held that Mr McDaid was not unfairly dismissed and that this outcome was not surprising given his behavior.

Conclusions

Mr McDaid’s case was fairly clear cut. An employee cannot harass a colleague, throw a colleague into a pool, and start a physical altercation with the General Manager causing injury without expecting consequences. While not all cases are as clear cut, employees should be aware of the kind of conduct at a work Christmas party that may form a reason for dismissal. Instigating fights with colleagues, harassing colleagues, and even failing to leave the premises when directed may constitute valid reasons for dismissal. Employees are reminded that the standard of behavior ordinarily expected in their workplace will be the standard of behavior expected at the work Christmas party.

The consumption of alcohol is not an excuse for poor behavior, even where the alcohol is provided or paid for by the employer. In certain situations an employer may be held responsible for the provision of alcohol such as where a drunk employee falls down stairs. However, alcohol consumption is not accepted as an excuse for bad behavior and certainly not physically violent behavior.

Employers should be aware that the appropriate procedures to follow in conducting an investigation and making a decision to terminate an employee’s conduct will vary depending on factors such as the employer’s size and whether the employer has any human resource capacity. Mr McDaid attended a number of meetings with a support person and was provided with a number of opportunities to respond before the decision to terminate was made.

Please be careful at your work functions this Christmas season and hopefully I won’t have to write another blog post on the same topic next year!