Aggressive and sexually inappropriate behaviour whilst under the influence of alcohol may be a harsh reason for dismissal if the employer supplied the alcohol.

A team leader who was dismissed after he used inappropriate language and harassed and bullied colleagues on the night of a work Christmas function successfully argued that his dismissal was unfair.

The art of polite conversation

The Christmas function took place in a hotel where the employees attending had unlimited access to alcohol. The employee consumed 10 beers at the function. During the function he told a member of the board to "f*ck off" and asked a female colleague "Who the f*ck are you?". The employee also tried to get the phone number of a female colleague.

After the function ended at 10:00 pm, a group of employees moved to a public bar where they purchased their own drinks. It was here that the employee touched the chin of a female colleague, said to another "I used to think you were a stuck up bitch", and kissed a third on the mouth without warning and told her "I'm going to go home and dream about you tonight". The employee's charm offensive continued en route to another venue with colleagues, when he told a fourth female colleague that it was his mission that night to find out the colour of her undergarments.

Following a number of complaints and an investigation, the employee was dismissed. He subsequently commenced an unfair dismissal claim.

Providing the means creates a problem for the end

The Commission found that aspects of the employee's behaviour were a valid reason for termination. However, the way in which allegations had been put to the employee during the employer's investigation were problematic. The allegations were put only in general terms, and the Commission was of the view that the employee didn't have an opportunity to respond.

The Commission also found that the employee's behaviour was isolated, and had likely occurred due to his intoxication. On the latter point, the fact that the employer had supplied the means for intoxication was relevant. Vice President Hatcher noted it was "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".

The Commission drew a distinction between the employee's behaviour at the work function and his behaviour afterwards, and found that the employee's behaviour after the function was not connected to his employment. This finding is somewhat at odds with other commentary regarding out-of-hours conduct, for example in relation to unlawful harassment under anti-discrimination laws.

The Commission ultimately found that the employer had a valid reason to dismiss the employee. However, in the circumstances, the termination was harsh and unjust. The Commission considered that the appropriate response would have been to demote him, issue a final warning, require a written apology and ban him from future work functions where alcohol is served.

Lessons to be learned

The Employer's undoing in this case was in part related to a lack of procedural fairness, because of a failure to put specific allegations to the employee for response.

This decision is also a reminder that employers need to be careful about managing employee behaviour at work-sponsored functions - going beyond simply reminding employees about workplace behaviour policies before turning on the beer taps. Employers should also be proactive in managing behaviour during, and at the close, of workplace events, for example by:

  • Placing a manager in charge of each work event where alcohol is served, where that manager undertakes to refrain from or limit drinking alcohol;
  • Monitoring employee intoxication levels and taking appropriate steps in response to intoxication of employees (e.g. cutting off access to alcohol or placing the employee in a taxi home); and
  • Clearly marking the end of a work function (e.g. by clearing the room, closing the tab and ensuring that employees pay for their own drinks at any further venue rather than the company credit card).

Stephen Keenan v Leighton Boral Amey NSW Pty Ltd. (2015) FWC 3156 (26 June 2015)