Intoxicated worker at office party unfairly dismissed

The Fair Work Commission has found in Keenan v Leighton Boral Amey NSW Pty Ltd (U2015/2778) that a team leader who told a board member to ‘’f… off mate’’ and proposed to a female co-worker that they should meet together with their respective children to go ice-skating or horse riding and requested her telephone number at a work Christmas party, was unfairly dismissed.

The team leader consumed two stubbies of beer before arriving at the function and then drank a total of about ten beers and one vodka and coke during the course of the evening between 7 pm and 11:15 pm.
There were a number of complaints about the team leader’s behaviour during the function and afterwards at an upstairs bar during which he kissed a female colleague.

There was no evidence that the board member took offence at the comment or even remembered it. It only came to the attention of other employees because the team leader, in his intoxicated state, told them that he had said this. The FWC found that this was not a valid reason for dismissal.

The employer alleged that the team member’s proposal to meet the female co-worker and her children constituted sexual harassment under the Sexual Discrimination Act or the employer’s bullying, harassment and discrimination policy but the FWC found otherwise. Whilst the team leader’s conduct towards the female co-worker was unwelcome, it was not considered to be of a sexual nature. The co-worker’s evidence did not suggest that she was upset by any sexual element in what the team leader said to her but rather by her perception that he was behaving aggressively and she felt intimidated by his persistence in asking her questions which intruded into her personal affairs. The FWC characterised the team leader’s conduct as a ‘’boorish attempts by a drink to lay the foundation for a future relationship with a woman he hardly knew’’ but in all the circumstances found it was not conduct of a sufficiently serious nature to constitute a valid reason for dismissal.

The FWC also found that the conduct that occurred at the upstairs bar after the function did not have any connection with the team leader’s employment as it was not in any sense organised, authorised, proposed or induced by the employer. The conduct was not unlawful under the Sexual Discrimination Act or conduct that the employer could be vicariously liable for, and therefore did not constitute a valid reason for dismissal.

The FWC also took into account eight additional matters in finding that the dismissal was harsh, unjust or unreasonable:
1. The lack of any consequences in the workplace as a result of the complained conduct.
2. The prior work record of the team leader.
3. The isolated and aberrant nature of the team leader’s conduct.
4. The role of alcohol in the team leader’s conduct.
5. The service of alcohol at the Christmas function.
6. The alternatives to dismissal available to the employer.
7. The personal consequences of dismissal to the team leader.
8. The different treatment of another employee in another complaint.

In relation to the issue of alcohol, the FWC said that the team leader could not divest himself of responsibility for what occurred because of his intoxication, but an exacerbating factor in that respect was the manner in which alcohol was served at the function. The FWC said, ‘’…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 consume an excessive amount and behave inappropriately.’’

So what message should employers take away from this case? It is important that employers place someone with managerial authority in charge of any work functions (with or without alcohol) and also take steps to satisfy itself that the hotel/restaurant/function venue will discharge its requirement to serve alcohol responsibility.

It is also important that employers put in place arrangements or ensure that employees have made adequate arrangements for their safe transport home after drinking alcohol at work functions. The best Christmas present for staff could be cab-charge vouchers for their journey home after the work Christmas function.