Christmas Party season is well and truly upon us and is a great time of year to celebrate and reward the great work that employees do throughout the year. What happens though if an employee misbehaves during the Christmas party? Can you sack them on the Monday?
In 2015 there were some lessons learnt by employers from the case of Keenan where an employee engaged in a long list of offensive behaviour which included him making unwanted sexual advances towards female colleagues, telling senior managers to “[bleep] off” and many other rude and abrasive comments and acts.
This employee’s employment was terminated following the Christmas party, however, it was held that this termination was unfair.
There have been some further decisions handed down in 2016 concerning the termination of an employee due to their party behaviour which provides some further guidance on what an employer can and should do in the event a Christmas party goes too far.
One decision involved a Qantas pilot who was on a layover in Santiago Chile when he claims that his drink was spiked causing him to grope his female co-pilot in a taxi on their way back to their hotel. Drug testing subsequently detected marijuana in his system and it was rejected that the drink had been spiked. It was found that he more likely knowingly smoked marijuana and that by doing so he was responsible for the sexual harassment of his co-pilot. The pilot’s employment had been terminated by Qantas and this termination was held to have been fair.
Another decision from 2016 involved a Christmas party where an employee was asked to leave after he had pushed a colleague into a swimming pool fully clothed. The general manager approached the employee asking for him to leave due to his inappropriate behaviour and in response this employee pushed and punched his boss causing him to fall to the ground and suffer from an injury. This employee’s dismissal was also held to have been fair.
The circumstances of the two cases are not obviously more serious than the conduct in Keenan however, the outcomes vary greatly. Although the behaviour in Keenan was not excused it was made clear in the decision that an employer could not expect appropriate behaviour whilst also providing unlimited, unchecked access to alcohol seemingly whilst not monitoring the behaviour of employees. In the Qantas case the sexual advances were considered to be work related sexual harassment as the night out was ‘work related’, and in the case concerning the swimming pool the employee had been asked to leave the function by the employer and it was the unwarranted and violent response to the employer attempting to monitor and control bad behaviour that warranted the dismissal.
These cases again highlight the need for employers to implement a few tips prior to their next Christmas party or other work functions, namely:-
- Outline the start and finish times for the function.
- Stipulate to employees that whilst it is a time for celebration it is not a chance to have a big night and include a statement about the expectation of acceptable behaviour.
- Try to limit the amount of alcohol served at the function and don’t rely on the venue complying with responsible service of alcohol requirements. If a bar tab is being used consider limiting it to beer and wine or have the bar tab run out prior to the conclusion of the function.
- Monitor employee behaviour and take action if behaviour becomes unacceptable such as calling a taxi or directing that they leave the function.
- Do not terminate the employee in the heat of the moment if behaviour gets out of hand. Conduct a prompt, thorough and fair investigation, interview the employees involved, put allegations to the employees involved and make a careful decision.
Please seek our assistance if you are not sure whether the behaviour of an employee warrants termination or if you require assistance in drafting a termination letter. We are also able to give advice to employees whose employment has been terminated and assist in the making of an unfair dismissal claim if necessary.
