With Christmas around the corner, it’s the time of year when many companies will be holding parties for their staff.
In this article we provide some practical tips for employers on how to organise work parties to ensure that employees stay safe and reduce the risks of any legal claims.
To provide a real-life example, we’ll revisit the case of Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 – a classic tale of a work Christmas party gone wrong. In that case, the employer lost an unfair dismissal case after they dismissed a badly-behaving (and heavily intoxicated) employee.
What happened in the Keenan case?
Pre-party
- The company booked a function room in the Novotel Sydney Brighton Beach Hotel from 6pm to 10pm for their Christmas party.
- It was arranged that the hotel would serve beer, wine, some mixed spirits, soft drinks, finger food and canapés.
- The contract between the company and the hotel stated that the hotel would comply with the relevant Responsible Service of Alcohol guidelines.
- On the day of the party, Mr Keenan’s supervisor said to Mr Keenan (and other employees) words to the following effect:
“The work Christmas party is on tonight, I’m not going but to those guys who are going, enjoy yourself, it is a thank you for your work this year. Kevin is putting drinks on for everyone. Do me a favour, don’t be that idiot that I have to deal with on Monday morning. Don’t be that person who gets blind drunk, abuses someone or punches someone. Have a good time.”
- The hotel set up a temporary bar facility in the room booked by the company which included large Esky-type containers filled with ice and bottled beer. It was intended that bar staff would serve all alcohol to the guests.
- Mr Keenan admitted to having two stubbies of beer prior to arriving at the party.
Party time
- Soon after arriving at the party, Mr Keenan proceeded to drink a large quantity of alcohol.
- Employees, including Mr Keenan, found they were able to help themselves to the beer in the Eskies (rather than the beer being served to them by staff of the hotel, as had been planned).
- There was no evidence that any employees were denied service of alcohol due to being intoxicated.
- Mr Keenan’s behaviour at the party included the following:
- After one of the directors of the company tried to join in a conversation between Mr Keenan and another employee, Mr Keenan (who did know the person was a director) told him to “f**k off mate”.
- he repeatedly asked a female colleague for her phone number.
- he said to another colleague who worked as the Executive Team Coordinator: “What do you even do? No seriously. Who the f**k are you? What do you even do here?”
Post-party
- After the conclusion of the official festivities, some employees, including Mr Keenan, moved upstairs to a public bar. The bar was separate to the room hired by the company for the party and the employees had to buy their own drinks.
- While at the public bar, Mr Keenan:
- stroked a female colleague’s cheek;
- told a second female colleague “I used to think you were a stuck-up bitch, but Ryan says you are alright. If Ryan likes you then you must be ok.”;
- grabbed a third female colleague on either side of her face and kissed her on the mouth, after which he told her “I’m going to dream about you tonight”; and
- told a fourth female colleague that his “mission tonight is to find out what colour knickers you have on.”
Disciplinary proceedings
Perhaps unsurprisingly, Mr Keenan was invited to a disciplinary meeting when he returned to work. Relying on his behaviour during the work party and in the public bar after the party had finished, the company terminated Mr Keenan from his employment.
Mr Keenan subsequently brought an unfair dismissal claim in the Fair Work Commission.
The case in the Fair Work Commission
In approaching the question of the fairness of Mr Keenan’s dismissal, the Commission came to the view that Mr Keenan’s behaviour after the official party had ended (i.e. in the public bar) should not have been taken into account in the decision to terminate his employment, as it had occurred outside the scope of his employment. It formed this view because the end time of the official event had been clearly communicated and the remaining employees took it upon themselves to carry on drinking elsewhere at their own expense.
The only conduct which should have been considered in the decision to dismiss (the Commission said) was Mr Keenan’s behaviour during the official work party.
Whilst the Commission considered that Mr Keenan had acted inappropriately at the official party – particularly his comments he made to the Executive Team Coordinator (“Who the f**k are you? What do you even do here?”) – the Commission ultimately found that the dismissal was unfair.
One of the factors that led to this conclusion was that the company had not placed any proper restraints on the service of alcohol to the employees. In the Commission’s words:
“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 consume an excessive amount and behave inappropriately…. During the Christmas function proper, Mr Keenan was never refused a drink or prevented from accessing alcohol, and no one suggested to him that he should stop or control his drinking. Indeed other employees during and after the function… continued to supply him with alcohol notwithstanding his visible intoxication. This was ultimately a result of the fact that [the company] did not place anyone with managerial authority in charge of the conduct of the function, but essentially let it run itself. I consider that the role of alcohol at the function weighs, at least in a limited way, in favour of a conclusion that the dismissal was harsh.”
Lessons for employers
We set out below some top tips for employers when organising Christmas parties:
- Before the work party, review the organisation’s relevant policies such as those dealing with sexual harassment and bullying. Make sure that these adequately deal with expected behaviour at work functions and have been effectively communicated to employees.
- If you don’t already have one, implement a social functions policy that specifically outlines the employer’s expectation regarding employee behaviour standards at staff functions.
- In advance of the party ensure all employees are informed (ideally in writing) of the behaviour expected during the party. Reference relevant policies.
- Make sure that there is a clear start and finish time for the function and that this is communicated to employees. If employees wish to continue socialising after the official event closes, make sure that they do so in a different location/venue, where they are responsible for buying their own drinks. Taking these steps will help to avoid any liability on the part of the employer for any incidents that take place after the party has ended (injuries, harassment, etc).
- If alcohol is being provided at the function, ensure that it is served by the venue and that the venue staff will observe Responsible Service of Alcohol guidelines. Avoid arrangements whereby employees can simply help themselves to alcoholic drinks. If this is not possible – consider appointing senior employees to serve the drinks.
- Supply an adequate amount of food and non-alcoholic beverages.
- Consider appointing one or more (senior) staff members as sober guests of the party to oversee employee behaviour.
- Consider organising transport home for employees to ensure that they get home safely. Taxi buses provided at the end of the official party is one way to help delineate the end of the event.
- If employees are witnessed showing signs of intoxication or inappropriate behaviour, make sure managers are empowered to halt them from drinking further and/or to send the employee home.
- Ensure that any allegations are investigated appropriately, and procedural fairness is observed when dealing with the employees in question.
Need help?
Need help with policies covering employee behaviour at Christmas parties, or dealing with bad behaviour that occurs at an event? At Employment Innovations, we have a team of HR Advisors and legal experts who can assist you with these issues. You can also access unlimited workplace advice and template workplace policies as part of our subscription products. To find out more, get in touch.