The Fair Work Commission has sounded a clear warning to employers that they can be held responsible for the behaviour of their employees if they provide unlimited alcohol at work functions, after a worker who sexually harassed his colleagues and swore at his boss at a Christmas party was found to be unfairly dismissed.
Stephen Keenan had been employed by Leighton Boral Amey Joint Venture since April 2014 and had been working in the role of team leader since October 2014, but was sacked on January 19 this year after a Christmas work function.
The Fair Work Commission heard employees were given access to unlimited alcohol at the event and Keenan drank 10 beers and one vodka and coke at the party, on top of two beers he had prior.
During the course of the party he told one of the company’s directors and a senior product manager to “fuck off” and asked a colleague “who the fuck are you? What do you do here?”
Once the work function had ended, Keenan went to a public bar with some of his colleagues. The commission heard he called one female colleague a “stuck up bitch”, causing her to become upset.
He was also accused of suddenly kissing another female colleague in an “unsolicited and unprovoked manner”, telling her he was “going to go home and dream about you tonight”.
Keenan allegedly told another female colleague “my mission tonight is to find out what colour knickers you have on”. She told him if he touched her skirt, “I’ll kill you.”
Leighton Boral Amey argued Keenan failed to comply with his duties and obligations and failed to uphold the company’s core value of “safety and respect”, based on his behaviour towards his female colleagues, but he denied the allegations and lodged an unfair dismissal claim with the Fair Work Commission.
While Fair Work Commission vice-president Adam Hatcher found the employer had a valid reason to terminate Keenan’s employment, he ruled the dismissal was harsh because the behaviour at the Christmas party was “isolated and aberrant in nature”.
Hatcher accepted as fact all of the allegations made toward Keenan but said only the conduct that occurred at the function venue between 6-10pm was relevant to determining if he was unfairly dismissed.
“It can be inferred from the evidence that the physical boundary of the function was the venue booked for it,” Hatcher said in his ruling.
“Employees were informed in advance that, in substance, [the company’s] standards of conduct would apply at the function, but there was no suggestion of any expectation that those standards would apply to behaviour outside the temporal and physical boundaries of the function.”
Hatcher took account of evidence provided that Keenan had a good record of employment and that ultimately his conduct was the result of how intoxicated he became at the Christmas party.
“An exacerbating factor in that respect was the manner in which alcohol was served at the function,” Hatcher said.
“In my view, 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 the function.”
“If alcohol is supplied in such a manner, it becomes entirely predictable that some individuals will consumer an excessive amount and behave inappropriately.”
The commission has yet to decide whether Keenan will be re-instated to his position.
Workplace law specialist and partner at M+K Lawyers partner, Andrew Douglas, told SmartCompany the case is a warning to other employers.
“You can’t have a Christmas party with as much beer as you want and then complain people were drinking it,” Douglas says.
“You can’t push an opportunity and then complain if employees take it.”
Douglas says this issue of mutual responsibility is a re-occurring theme in workplace law and employers need to understand if they create circumstances where particular behaviour can occur, they share the responsibility for it.
For this reason, he says employers should always clearly communicate what is considered a work function and managers should not support or condone drinking with their employees outside of work.
However, Douglas says the Fair Work Commission may have taken a different stance in this case if it had been one of Keenan’s female colleagues who had complained about his behaviour.
“If a sexual harassment claim had been brought by one of the women, I have no doubt the [female] employee would have been protected,” he says.
SmartCompany contacted Leighton Boral Amey Joint Venture but the company declined to comment.