Handling misconduct outside of the workplace

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Australia’s Fair Work Commission (FWC) recently ruled in favour of an employee who was sacked after sexually harassing his colleagues and telling his bosses to “f*** off” at a Christmas party – because the company had supplied him with alcohol.

The Commission heard that the former employee of Leighton Boral Amey Joint Venture was under the influence of alcohol before arriving at the function, where he told a company director and senior project manager to “f*** off”. He was also alleged to have asked a colleague: “who the f*** are you? What do you even do here?”

When the party ended, the employee was said to have joined some colleagues at a public bar, where he called one a “stuck-up b****” and kissed another.
The woman said he later told her: “I'm going to go home and dream about you tonight”, which he denied.

Upon returning to work in January, the employee – who held a team leader position – was dismissed for sexual harassment.

During the wait for a taxi after the event, he was also alleged to have told another colleague: “my mission tonight is to find out what colour knickers you have on”.

Commission vice president Adam Hatcher said that while all of the allegations had been established as fact, only the employee’s actions that occurred at the function venue between six and ten o’clock could be used to consider whether the conduct warranted dismissal.

“It can be inferred from the evidence that the physical boundary of the function was the venue booked for it,” Hatcher said. “Employees were informed in advance that, in substance, LBAJV's standards of conduct would apply at the function, but there was no suggestion of any expectation that those standards would apply to behaviour outside the temporal and physical boundaries of the function.”

Hatcher referred to the employee’s misconduct at the Christmas party as a result of his intoxication, which was a “mitigating factor”.

“An exacerbating factor in that respect was the manner in which alcohol was served at the function,” he continued. “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.”

HRM spoke to Catherine Stewart, Convenor of the ADLSI Employment Law Committee, about the what the implications would have been had the case occurred in New Zealand.

“Under the Health and Safety in Employment Act, employers are required to take all practical steps to identify and manage hazards,” she explained. “Alcohol is specifically included in the Act’s definition of ‘hazard’ – the definition includes situations where a person’s behaviour could be the cause or source of harm, including situations resulting from drug or alcohol use.”

Stewart added that the Act also dictates that these hazards can occur within or outside the place of work.

“In this situation, because of our legislation, employers have an obligation to manage alcohol responsibly for their staff,” she told HRM. “Legislation in New Zealand says that employers have a duty to manage hazards arising within or outside of work, so the same obligations would apply to employers if the function occurred outside of the office.”

When employers are providing the alcohol, they must take appropriate steps to manage it responsibly in order to comply with the Act.

“There’s a whole range of ways in which employers can ensure that staff are being looked after and alcohol doesn’t become a hazard,” Stewart said.

These include, but are not limited to:

- Placing a limit on the bar tab
- If there is a free flow of alcohol, assessing the circumstances to consider whether it’s responsible – for example, is food provided?
- Limiting alcohol where people are becoming intoxicated

“These will differ in each case, but employers need to be mindful that they have obligations to manage alcohol as a hazard,” Stewart said.

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