Worker loses unfair dismissal bid after allegedly throwing colleague in a swimming pool at work Christmas party
Thursday, January 28, 2016/
The Fair Work Commission has upheld an employer’s decision to sack a worker who the company claimed drunkenly threw his fully clothed colleague into a swimming pool at the work Christmas party.
Damien McDaid, worked as project coordinator at Western Australia based engineering firm FEC, and had been employed since 2008.
He brought an unfair dismissal claim before the Fair Work Commission, claiming his employer was at fault for providing alcohol at a work Christmas party in December 2014.
However, personnel from FEC told the commission McDaid acted aggressively at the work function, was intoxicated and repeatedly poked a colleague in the chest before later throwing him into the pool without warning, an allegation which McDaid denied.
The commission heard tension had already been building between McDaid and his boss prior to the function, with his boss informing staff that all employees who had not completed their work would be left out of office Christmas festivities.
McDaid attended work on the Saturday before to complete his work and the day prior to the party approached his boss over mounting tension.
His boss said he was unhappy about am $84 petrol expenses claim Mr McDaid had made, which McDaid said he would put back onto his work credit card.
The commission heard during the Christmas party, McDaid was asked to leave the event by his boss twice before the pool-throwing incident and following the incident, both men told each other to “fuck off”. This led to another physical altercation between McDaid and his boss.
The events of the Christmas party were later discussed during a series of meetings between McDaid and his managers, with McDaid’s employment terminated in March 2015
Fair Work Commissioner Bruce Williams rejected McDaid’s unfair dismissal claim stating it was “not surprising” he was fired. He found the dismissal was neither harsh, unjust or unreasonable.
“To his credit Mr McDaid did not attempt to use the fact that he had been drinking as an excuse for his conduct,” Williams said.
“He did, however, criticise the employer generally for its actions in supplying the alcohol. Whilst in some circumstances an employer that provides alcohol at a work function and takes no steps to ensure it is consumed responsibly may be culpable for events attributable to the consumption of alcohol, such as a drunken employee being injured falling down stairs, employees who drink will also be held responsible for their own actions.”
“The fact that someone has been drinking when they behave badly may in part explain their actions but it should not be accepted as an excuse for that misbehaviour. How much alcohol someone drinks is a choice they make and with that choice comes consequences.”
“Society no longer readily accepts alcohol consumption as an excuse for bad behaviour and certainly not for physical violence,” he added.
Workplace lawyer Peter Vitale told SmartCompany this morning conduct outside of the workplace, including Christmas parties, can be used by both an employer for disciplinary action and an employee for claims such as bullying or discrimination.
“What this case really boils down to was that the employee’s conduct was so far outside the realms of what’s acceptable that the commission would’ve been very hard pressed to come to a different decision,” he says.
Vitale advises SMEs to speak to staff prior to events like Christmas parties .
“Before you hold any of these functions make sure all your employees understand the rules and what behaviour is expected of them,” he says.
“Make sure that alcohol consumption is monitored. Make sure that adequate food, soft drinks are provided and make sure that employees have transport or accommodation arrangements.”
SmartCompany was unable to contact FEC or McDaid for comment prior to publication.