Employer-supplied alcohol a ‘mitigating factor’ in misconduct, says FWC

The Fair Work Commission (FWC) has 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.

It was found that employers could jeopardise their position to dictate standards of conduct at work functions if they serve unlimited amounts of free 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.”

He added that there was no evidence that the employee’s misconduct had ever taken place in the workplace, and noted that he had a good record of continuous employment.

“The conduct which I have found constituted a valid reason for his dismissal can fairly be characterised as isolated and aberrant in nature,” said Hatcher. “That also weighs in favour of a finding that [the] dismissal was harsh.”

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.”

Joydeep Hor, managing principal of People + Culture Strategies, previously told HCthat it is highly important for employers to maintain a consistent level of responsibility throughout work functions.

“Employers place a lot of trust and reliance in their employees behaving responsibly, and in 85% – 98% of occasions they do,” he said.

Hor had the following tips for employers planning celebrations where employees will have access to alcohol:

  • Ensure that you have committed to a proper program of education regarding expected behaviour with your staff, with that working hand in hand with written policies
  • Ensure that there is at least one member of senior management who commits to sobriety during an event
  • Empower staff to call out inappropriate behaviours so that they can be dealt with at the time rather than by filing complaints afterwards
  • Think very carefully about what funding you provide for alcohol consumption
  • Consider factors such as heat, dehydration and lack of food, assessing them from a health, safety and wellbeing point of view

Since the decision was made public, it has been met with backlash from leading employer groups.

Innes Willox, chief executive of the Australian Industry Group, told The Canberra Times that the commission’s decision highlighted the need for companies to minimise risks at Christmas parties and other out-of-hours work functions.

“This includes restricting the amount of alcohol served, keeping to a set time for the event, and considering how employees will get home safely,” he said. “Employees, of course, also have responsibility to behave appropriately at work functions, and the commission’s decision is of concern in this area.”

Australian Federation of Employers and Industries chief executive Garry Brack said employers had been left in limbo by the Fair Work Commission’s decision and its inconsistency on the issue, and suggested that new legislation was needed.

“The Productivity Commission needs to look at this decision,” he told The Times. “I think this will be resolved by a change in legislation down the track. In some decisions, employers are told they should take action or should have taken action. In other cases you get the reverse … Those inconsistencies need to be resolved so employers have a reasonable idea of where they stand.”