Monday, 25 November 2019

Managing festive misconduct: Tips for employers

With festive fun and a mix of alcohol comes the potential for inappropriate employee behaviour which can include bullying, misconduct, harassment and safety concerns.

A recent case in the Fair Work Commission (FWC) demonstrates that employer liability may not be confined to official Christmas parties, but also other social events organised by employers. In addition, this case emphasises that disciplinary responses for similar allegations can result in very different outcomes. Specifically, of two employees who were involved in the altercation at the same event, one employee was found to have been fairly dismissed for punching a supervisor at a work event, whilst the other was found to have been unfairly dismissed and was ultimately reinstated.

The two mineworkers were dismissed for allegedly punching the same supervisor at a “work” Christmas function held at a bowling club and both made unfair dismissal claims, with the decision being handed down on 30 October this year.

The first employee was alleged to have punched the supervisor in the face, and also to have made offensive comments to a female colleague. Although he admitted to this conduct, he submitted that his employer had not organised the function and it did not have the requisite connection to employment, such that he should not be disciplined for his conduct at the event.

The FWC found otherwise, noting that the Christmas function had been organised by the employer and therefore employees were required to adhere to the company Code of Conduct at the event. The FWC further found that even if the function had not been an employer-organised event (and instead, a normal catch up between mineworkers which occurred regularly), this could still be sufficiently connected to employment such that the employer’s expected standards of behaviour would need to be adhered to. The FWC concluded that the first employee was fairly dismissed.

The second employee was also alleged to have punched the supervisor, but he denied this occurred. FWC ultimately accepted his version of events and therefore found his dismissal to be unfair. The second employee was reinstated and awarded payment of lost remuneration. However, although it was found that the employee had not punched the supervisor, it was found that he had engaged in other inappropriate behaviour that night and  had also failed to mitigate the loss of his employment. Therefore, a deduction made from the amount was awarded for lost remuneration for these reasons.

Lessons for employers

This case highlights that end of year events, whether or not organised by employers, are likely to be deemed sufficiently connected to work, meaning that employees are expected to behave in accordance with company policies and procedures at those events and may be subject to disciplinary action if they fail to do so.

Ahead of end of year functions, employers may give consideration to the following tips to minimise legal risks at those functions:

  • Before the function, remind employees about appropriate standards of behaviour.
  • Hold the event off-site and have clear start and finish times.
  • Ensure the venue adheres to the responsible service of alcohol.
  • Nominate a manager who is responsible for the running of the function to ensure employees are behaving and to oversee the responsible serving of alcohol.
  • Ensure the function is arranged with accessible public transport options.
  • Remind staff to get the balance right – it is a “fun” function but it is still a work function.

In the event employees fail to adhere to expected standards of behaviour at such events, employers should consider seeking advice on management of the misconduct, particularly where allegations are likely to result in the dismissal of employees.

Case study: Drake & Bird v BHP Coal Pty Ltd [2019] FWC 7444 (30 October 2019)

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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