The Fair Work Commission’s decision in Stephen Keenan v Leighton Boral Amey NSW Pty Ltd is a handy decision to refer back to because it provides some important guidance for employers on the limits of responsibility for employee conduct at work-related social events, especially work Christmas parties.
Mr Keenan was dismissed for inappropriate behaviour during and after his work’s Christmas party. The inappropriate conduct included:
- aggressive language (yes, he told the company director to ‘f**k off’ in his intoxicated state!),
- unwanted advances (he asked a female colleague for her number emboldened by eggnog), and
- an unsolicited kiss (this was a kiss for a different female colleague).
One of the key issues that the Commission considered was whether conduct after the official work Christmas party/function ended could be treated as occurring “in connection with employment”.
Summary of the Commission’s Distinction
Christmas Party = Workplace
The official function, organised and funded by the employer, was clearly within the scope of employment. Employees were told that company standards applied, and the venue and timing were set by the employer. Therefore, misconduct during this period was subject to disciplinary action.
Drinks After = Private Activity
Once the function ended at 10:00 pm and employees moved to the hotel’s public bar, the setting changed. The Commission held that this was a private social setting, not organised or endorsed by the employer. Conduct here was “merely incidental” to employment and could not justify dismissal unless it met the strict test for out-of-hours misconduct (eg causing serious damage to the employment relationship or employer’s interests).
This case serves as a handy reminder during the Festive Season and offers some practical tips to keep in mind, including:
- Clearly communicate start and finish times and behavioural expectations for work functions.
- Unlimited alcohol and lack of supervision were factors in this case, so responsible service of alcohol and managerial oversight are essential during work functions.
- Employers generally cannot regulate behaviour after an event unless it has a direct and significant impact on the workplace.
- Ensure your Code of Conduct and harassment policies specify their application to work-related events.
This case serves as a reminder, that while employers can (and should) enforce standards at official functions, their reach does not automatically extend to after-parties, even when employees behave poorly.
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