Work Christmas parties – a legal survival guide

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.   

Why junior lawyers should choose experience over size of pay cheque

In an ideal world all lawyers would work in the area of law they love and be paid a large amount to do this work. The reality for junior lawyers is very different. In the current legal employment market, law graduates are lucky if they can get any job as a lawyer, let alone a job in an area of law they want to work in. It may seem an easy decision to take a position working in commercial law, especially if a relatively large pay cheque is offered. However, if working at a commercial law firm is not your dream job, and you do not have the relevant experience at two years PQE to transfer to your dream job, it may become increasingly difficult to make that transition.

Why experience is key

The magic number in terms of experience junior lawyers need before they have real bargaining power in the legal market is 2 years post-qualification experience (2PQE). After 2PQE you will no longer be on a conditional practising certificate and are considered a fully fledged lawyer. The type of work experience you have at this point is key to scoring your dream job. If you have been job hunting recently you would have noticed that while there seems to be a glut of jobs for graduate lawyers, there are plenty of jobs advertised for 2PQE lawyers. One reason for this is that training graduates is expensive, and with the tight budgets many legal teams are operating under, it is cheaper to hire a trained 2PQE lawyer than train a law graduate from scratch. At 2 years PQE if you are not already working in your dream job, this is your opportunity to make the jump. However, you can only make the jump if you have the relevant experience. If your experience up to that point is not transferrable to the area of law you really want to work in, you may be in trouble.

The allure of well-paying jobs

After slumming it as a law student for half a decade, it can be tempting to look for the highest paying graduate job and go for that. Do not give in to this temptation. In Australia we have strong minimum wages, and regardless of what type of legal job you land you will be paid at least Award rate or minimum wage, which is sufficient to cover rent and living expenses.

You should have a clear idea of the areas of law you are interested in and the type of clients you would like to work for. Law students have a tendency to forget about the type of clients they want to work for when this is as important as identifying the area of law you would like to work in. For example, if you have a keen interest in employment law and industrial relations, your plan will be very different depending on whether you would like to represent employers, employees, or unions. These categories have a number of sub-categories. You will regret choosing the size of your pay cheque over obtaining relevant experience when you later try and transfer into the field of your dream job.   

This is not to say you cannot have both a job you love and be paid well for it. If you can achieve this straight out of uni, go for it. If your life’s calling is to work as a taxation lawyer in a large commercial law firm it may be that you can work in your dream job and be paid well from the get-go. For most lawyers, it can take a while to achieve both goals.

How to get a job in the area of law you want

At 2 years PQE you will have two assets broadly speaking:

1.       The experience and skills set you have gained in those two years; and

2.       A narrative.

These assets are what will get you your dream job. Speaking in the abstract can be difficult, so I will give some examples of how your experience and narrative can land you your dream job:

1.       You want to work at a community legal centre

With funding cuts to community legal centres around Australia, it is almost impossible to get a paid graduate position. Lawyers at community legal centres need to be able to run their own matters with little supervision, so there is a higher chance of getting a job after you have a few years’ experience. Experience in a variety of areas including leasing, family law, mental health, administrative law, and criminal law would assist in getting the job, but experience doing legal work for vulnerable individuals can be more important. If you find yourself at a commercial law firm, try and get a rotation in the pro-bono team. Even better, work at a smaller firm that represents individuals and has a large pro-bono presence, work for Legal Aid or take Legal Aid work as a lawyer. Volunteering at community legal centres after work hours will also show your commitment and add to your narrative.

2.       You want to be a criminal defence lawyer

Luckily, smaller criminal defence firms are often advertising for law graduates, as criminal law is litigious and junior lawyers are always needed. If you can show a passion for criminal law and demonstrate you studied relevant electives at university, you should be able to get a job as a junior criminal defence lawyer. Experience working as an Associate in the District or Supreme Court for a criminal law judge is also well regarded. What you do not want to do is go to a large commercial law firm and then later try and transfer to criminal law. If the only job you can get is in commercial law, at least ensure it is at a smaller firm where you can get litigation and court experience in the Local and District Courts.

3.       You want to work in media law at the ABC

This is a much coveted in-house job in media law. To try and get this job, you will not only need experience in defamation, IP, copyright and contracts, but you will also need in-house experience. It is traditionally difficult for graduates to get jobs in-house. However, if you find yourself at a commercial law firm, you may be able to go on a secondment to work in-house for a period of time. You will also need a convincing narrative that demonstrates a passion for media law and media issues.

Hopefully you can see how important the type of legal experience and narrative you develop after you leave university is key to getting your dream job. If you are fixated on how much you are getting paid, you may miss developing the experience you need to eventually get that dream job. Good luck!

The removal of a judge by parliament – legislative supervision of the judiciary (aka “how to get rid of a judge”)

How can a judge be dismissed? What is the process and has it been done before? In light of the Commonwealth parliament commencing an investigation into Vice President Lawler of the Fair Work Commission, there has been renewed public interest in how a judge can be dismissed. Some of the reporting on the process has been inaccurate and misleading. This blog post summarises the statutory and common law requirements to remove a judge from office.

Four step process

While the exact procedure to dismiss a judge varies between jurisdictions and courts, the process can be distilled to four steps:

1.       Initiation of process is in the hands of the legislature itself – usually requires an inquiry by a former judge or judges

The legislature must initiate the process of dismissing a judge. Usually the first step is to instigate an inquiry into the judge’s conduct. The inquiry is initiated on motion by a House of Parliament. Inquiries are usually headed by a former judge or judges. Private individuals cannot move a court to compel the legislature to start a motion, as this interferes with the privileges of parliament. This principle was affirmed in Re Reid; Ex parte Bienstein (2001) 182 ALR 473 at 478-9 where a party in a family law matter sough to compel the President of the Senate, Margaret Reid to initiative an investigation and remove a judge of the Family Court of Australia.

NSW and the ACT are unique in that they have Judicial Commissions with functions that include examining and dealing with complaints about judges (Judicial Commissions Act 1994 (ACT) (ACT JC Act); Judicial Officers Act 1986 (NSW) (NSW JO Act). In NSW the Judicial Commission is involved from the outset in complaint management and investigations, while in the ACT the Judicial Commission is only involved for the duration of the investigation once the Legislative Assembly has passed a resolution for the examination of a complaint (s.18 ACT JC Act).

In NSW, the Judicial Commission has a Conduct Division with the function of examining and dealing with complaints referred to it under Part 6 and with formal requests referred to it under Part 6A. A complaint can be made to the Judicial Commission by any individual, and Ministers can also refer complaints (ss.15 and 16). The Judicial Commission initiates the process by making a preliminary examination and deciding whether to refer the complaint to the Conduct Division (ss.20 and 21). The Conduct Division is made up of a panel of three, with two of the panel members being judicial officers and the third being a community representative (s.22). The Conduct Division must examine complaints referred to it and can initiate an investigation into a complaint (s.23).

The ACT Judicial Commission operates differently to the NSW Judicial Commission, the main difference being that the ACT Judicial Commission does not become involved until the Legislative Assembly passes a resolution for the examination of the complaint (s.18). In such a case, the executive must appoint a judicial commission to investigate the complaint, and the investigation and findings must be provided to the Attorney-General in the time period specified. Only parliament has the power to initiate an investigation, in a similar way to other jurisdictions that do not have a judicial commission. The ACT Judicial Commission is constituted by three current or retired judges (s.7) and has no direct community representative.

2.       Judge has a common law right (statutory in the ACT under s.15 of the ACT JC Act) to be heard in their own defence

The judge is usually given this opportunity to respond to or explain allegations made against them during the conduct of the investigation, if not before hand.

3.       There are only two grounds a judge can be removed for, misbehaviour and incapacity, either one or both must be proved depending on the relevant jurisdiction and court

Section 72(ii) of the Constitution states that a “Justice of the High Court and the other courts created by Parliament... shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity”. These two grounds of proved misbehaviour and incapacity in s.72 apply to High Court judges, Federal Court judges, Federal Circuit Court judges, Family Court judges and judges of other courts created by Parliament under Chapter III of the Constitution. The grounds for removal in other jurisdictions are similar. In jurisdictions where no grounds for removal are stated, technically the legislature could remove a judge on any grounds, but no parliament in Australia has ever proceeded on this basis. It would be unprecedented for an Australian parliament to remove a judge on a bare address without grounds of misbehaviour or incapacity first being proved.

Legislation governing the grounds for removal in other jurisdictions includes:

1.       Constitution of Queensland 2001 (Qld) s.61(2) applies to the removal of Queensland Supreme Court and District Court judges – “proved misbehaviour justifying removal from office” or “proved incapacity to perform the duties of office”.

2.       Constitution Act 1889 (WA) s.55 does not specify grounds for removal, but s.54 uses the phrase “good behaviour” indicating a judge could be dismissed where “good behaviour” is not demonstrated.

3.       Constitution Act 1902 (NSW) s.53(2) applies to the removal of a number of NSW judges including judges of the Supreme Court, District Court, and Land and Environment Court – “proved misbehaviour or incapacity”.

4.       Constitution Act 1934 (SA) s.75 applies to the removal of South Australian Supreme Court judges, does not specify grounds, but s.74 indicates grounds for dismissal could include where a judge has not demonstrated “good behaviour”.

5.       Constitution Act 1975 (Vic) s.77(1) applies to the removal of judges of the Supreme Court and County Court, and Magistrates - “removal on the ground of proved misbehaviour or incapacity”.

6.       Supreme Court Act 1978 (NT) s.40(1) applies to the removal of judges of the Supreme Court of the Northern Territory - “removal on the ground of proved misbehaviour or incapacity”.

The investigation tabled with parliament will make findings and recommendations as to whether misbehaviour or incapacity has been established.  Misbehaviour is a broad category that clearly includes serious criminal conduct but may also encompasses everything from severe conflicts of interest to corruption and bribery. Incapacity can be physical or mental. An example of what would constitute mental incapacity is the findings of the investigation conducted into Justice Vincent Bruce of the NSW Supreme Court in 1998. Numerous complaints had been made about Justice Bruce who was persistently late in writing judgments. The investigation found this behaviour was attributable to Justice Bruce suffering from severe depression. While the investigation found there was proved incapacity, NSW parliament did not proceed with the address and Justice Bruce resigned.

4.       Motion for removal must be passed by both Houses and forwarded to the Governor or Governor-General who then revokes the appointment of the judge.

Judges are rarely dismissed. In the 1800s only four Supreme Court judges were removed and in one of these cases the motion was invalidated by the Privy Council. The inquiries instigated in the 1900s include:

1.       The 1987 investigation instigated by Queensland parliament into the behaviour of Justice Angelo Vasta of the Queensland Supreme Court;

2.       The inquiry into the conduct of Justice Bruce of the NSW Supreme Court in 1998; and

3.       The inquiry commenced into the conduct of Justice Lionel Murphy of the High Court in 1981. Justice Murphy died before next steps could be taken.

It is very rare for a situation to arise where parliament would be required to pass the requisite motions to advise the Governor or Governor-General to revoke a judge’s appointment. Most judges choose to resign when the investigation is initiated or after the investigation has concluded rather than be dragged through an investigation and/or be dismissed by the Governor or Governor-General.

There is limited recourse outside this process

There is limited recourse outside for the behaviour of a judge outside the parliamentary process described above. The Chief Justice of a court can somewhat deal with performance issues through managing a judge’s work load. For example, by allocating the judge simple matters or reduce the number of matters the judge is hearing. However, even if a judge was allocated no matters, the judge would continue to be paid remuneration until dismissed by the Governor or Governor-General after a parliamentary motion has been successfully passed. While the system is not perfect, it does assist with maintaining judicial independence.