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Commission finds employee’s out-of-hours conduct at social gathering to be a valid reason for dismissal

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Nothing good comes after Sundowner

The physical return-to-work happening at many workplaces will also see the return of work-related events in an effort to reacquaint employees after a string of lockdowns and stay at home orders.

The physical return-to-work happening at many workplaces will also see the return of work-related events in an effort to reacquaint employees after a string of lockdowns and stay at home orders.

The Fair Work Commission (FWC) recently set out the standard of appropriate workplace conduct at work-related events, especially when the employer has allowed for the provision of alcohol or where the event rolls into an unofficial gathering.

In Keron v Westpac Banking Corporation [2022] FWC 221, a Senior Relationship Manager who had a 35-year tenure with Westpac (the Employer) lodged an unfair dismissal application after he was dismissed for inappropriately touching a female colleague and verbally abusing another after an organised work event.

In or around March 2021, the employee attended an offsite professional development workshop organised by the Employer.

Following the workshop, the Employer organised a “Sundowner” at a pub as a social event for staff until 6:30pm. The Employer provided each staff member with a wristband which identified them being a guest of the Employer and enabled free access to drinks.

By 7pm, only the employee and a small group of staff members remained and continued to consume alcohol at their own expense. From here, the employee became involved in two incidents.  These incidents were investigated and subsequent disciplinary action resulted in his dismissal.

The first incident involved the inappropriate touching of a female employee where she claimed that the employee reached over and touched her buttocks “over a period of a few seconds”.

The second incident occurred when the remaining group members moved on to the Crown Casino, where the employee yelled expletives and offensive language at a second female employee after she told security not to let the employee enter due to him being intoxicated.

The incidents led to an internal investigation by the Employer which included the collection of CCTV footage from the pub and witness statements. The first female employee also made a formal complaint to the police which led to the charge and arrest of the employee for indecent assault.

This internal investigation substantiated the first incident and partially substantiated the second incident, leading to a finding that the employee had breached a number of the Employer’s policies. On this basis, the Employer notified the employee of its decision to summarily dismiss him due to serious misconduct.

The employee lodged an unfair dismissal application before the FWC, claiming that the Employer had no valid reason for dismissal as the incidents occurred outside of the workplace.

The Employer maintained that, on the evidence before it, it had been entitled to find that the employee had engaged in inappropriate behaviour that was in breach of its workplace policies, the scope of which extended to work-related events.

The FWC acknowledged that in attending the Sundowner, the conduct “occurred on the border between work-related event and private activities”. Accordingly, the FWC was tasked with determining whether the incidents occurred in connection with his employment and warranted dismissal.

The FWC noted that while an incident may occur at the physical location of a work-related event, it does not necessarily mean that there is a sufficient connection with employment.

However, in relation to the first incident, the FWC was satisfied that the social connection between the employee and the female employee only transpired due to the Employer’s organised event. Therefore, the FWC held that the conduct of this incident was sufficiently connected to the employee’s employment and formed a valid reason for dismissal.  

In contrast, the FWC noted that the second incident occurred four hours after the Sundowner, more than a kilometre away and neither employee wore anything that might identify them as having involvement with the Employer. On this basis, the FWC held that the conduct of the second incident was not sufficiently connected to the employee’s employment and did not form a valid reason for dismissal.

In finding that the conduct of the first incident formed a valid reason for dismissal and that the employee was not denied procedural fairness, the FWC dismissed the application.

While dismissing the application, the FWC was particularly critical of the Employer’s choice of venue being a sports pub and its decision to provide unrestricted access to alcohol without ensuring that the employees departed and returned home safely.

The FWC also went on to warn that the standard for what is considered appropriate social interactions has significantly been raised in the wider community with an even higher standard set for work-related environments.

Lessons for employers

When organising work-related events, employers should carefully consider the necessity and appropriateness of providing alcohol to staff given the lack of proper judgment resulting from the consumption of alcohol. If employers choose to provide alcohol at work-related events, they must ensure that it is served responsibly and, as far as reasonably practicable, that employees are able to return home safely.

This decision also serves as a reminder to employers that while an employee’s conduct may occur out-of-hours, there may still be a sufficient connection to employment covered by workplace policies and codes of conduct to allow the employer to take action in response to unacceptable conduct or behaviour.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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