Why employees and employers should be careful at end of year parties

The end of year party is a great way to relax, debrief and bond with your colleagues.  But the end of year party also tends to be alcohol-fuelled and brings with it the risk that people will behave badly.  From an employment lawyer’s perspective, it often create challenges as the line between work and out of hours becomes blurred.

When poor behaviour can get you fired

Often employers will have policies about acceptable behaviours at work functions and may even send emails to staff requiring that they be on their best behaviour at staff functions.  These policies and emails are referred to as “directions” and employees are required to comply with these directions so long as they are lawful and reasonable. This means that you aren’t completely free to act and do as you please.  If you do something that is at odds with what you have been told to do, you could be sanctioned.  Depending on how serious the conduct is you could even be terminated.

In Vai v ALDI Stores[1] an employee was dismissed for behaving badly at a staff Christmas Party.  Mr Vai attended the Christmas Party which was held at a private function room and all costs, including alcohol were paid by ALDI.   At the event he drank a significant amount of alcohol and was drunk, he also drank alcohol before attending the Christmas party.  He was cut off by the bar staff and managers had ignored manager’s suggestions to leave the party and go to another venue.

The In a drunken state, Mr Val threw a glass of beer in the direction of his colleagues.  It narrowly missed them and smashed on the wall behind them.  Those at the party considered this incident to be pretty significant, and the party ended shortly after.

Mr Val was later dismissed for his conduct, and brought an application in the Fair Work Commission alleging that he had been unfairly dismissed. Mr Val’s application failed with the Fair Work Commission finding that the dismissal was not unfair.   The Commission considered that ALDI had taken sufficient steps to manage the function appropriately, including limiting the service of alcohol, speaking to the employee, having managers present at the party and hiring security guards.  The Commission found that Mr Val’s behaviour was significant and seriousness, particularly given that the conduct had the potential to cause significant physical injury to others.

Employers have responsibility too

However the responsibility doesn’t lie only with the employee.  If an employer is supplying an unlimited amount of alcohol to its employees, then it won’t necessarily be able to sack an employee if they play up.

In Keenan v Leighton[2] the Fair Work Commission found that it was unfair to dismiss Mr Keenan for his poor behaviour at and after the Christmas party.

Before attending the Christmas party, Mr Keenan had had a couple of pre-drinks.  When he arrived at the Christmas party he found that employees of Leighton were able to help themselves to free bottles of alcohol, which he did.  Despite that Mr Keenan became very drunk and was slurring his words there was no evidence that Leighton stopped allowing him to access alcohol. 

During the party Mr Keenan told a director to “f*** off” and said to a senior employee “What do you even do? No seriously. Who the f*** are you? What do you even do here?".  He also made a number of requests to a female manager for her phone number.  

After the party came to an official close, Mr Keenan and a large number of employees moved to a public bar in the same venue.  Mr Keenan continued to behave terribly including by making sexually harassing comments to a number of women he worked with.

Mr Keenan was later dismissed for his conduct that occurred that evening.   In finding that the dismissal was unfair, the Commission determined that Mr Keenan’s conduct that occurred after the party had come to an end was private, and could not be used as a reason to dismiss.

The question then turned to whether Mr Keenan’s behaviour at the party was serious enough to dismiss him for.  The Commission found that it wasn’t.  A major factor in reaching this decision was that the employer had allowed the unlimited service of alcohol to which employees were able to help themselves.  Further, the employer had not assigned any managers to supervise the function.  The Fair Work Commission considered that these factors, in combination with Mr Keenan’s intoxication good record and other relevant circumstances meant that the dismissal was unfair.

Key Take Away 

Enjoy your staff party, but do it sensibly.  Whilst your employer has obligations to manage conduct and create a safe environment, employees could be sanctioned for behaving badly.

 

[1] Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118 (11 July 2018)

[2] Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156

RELATED LEGAL SERVICES: Employment law

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Emily Creak

Maurice Blackburn Melbourne
Emily Creak is an employment and industrial Associate, practising in Maurice Blackburn’s Melbourne office. Emily has been recognised by the Law Institute of Victoria as an Accredited Specialist in Workplace Relations Law, and is a member of the only first tier law practice listed by ...

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