The Fair Work Commission has found that a team leader who spent the evening of his work Christmas party intimidating and sexually harassing colleagues and telling superiors to “f–k off” was unfairly dismissed. The decision also highlighted the need for managers to minimise risks at Christmas parties and other work functions, with the Commissioner questioning whether companies can insist on compliance with conduct standards at functions when they provide “unlimited service of free alcohol”.
The team leader for a major construction joint venture consumed 13 drinks on the night, including two beers before he arrived and a vodka and coke after the party at a public bar attached to the same venue.
At the party he told a company director to “f..k off” when he attempted to join a conversation, directed the same abuse at a senior project manager, asked a female colleague for her phone number and said to another: “Who the f..k are you? What do you even do here?”
When the party ended, he accompanied some colleagues to the venue’s public bar, where he spoke crudely to female colleagues, describing one as a “bitch” and kissing another on the mouth, telling her he was going to go home and dream about her.
On the way to a separate venue he told another colleague that it was his “mission” to find out the colour of her undergarments.
The employer decided to wait until the team leader returned to work in January to dismiss him for two counts of sexual harassment: the intimidation and phone number request of one colleague and the after-party kissing of another.
While defending the sacking in the FWC, the company relied on a total of eight incidents it claimed amounted to misconduct.
The Commissioner agreed the “factual basis” for all eight incidents could be established, but for the purpose of determining whether his conduct warranted dismissal, the FWC could only consider those occurring in the hours and the room within which the party was booked.
“Employees were informed in advance that, in substance, (the company’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 said.
“The period spent by employees in the upstairs bar and out in the street after 10.00pm was outside of the workplace and outside of working time, however broadly construed the concepts may be.”
He said it was “abundantly clear” that kissing his colleague fell within the Sex Discrimination Act’s S28A definition of sexual harassment.
However as the incident did not occur “in connection” with the team leader’s employment, the employer did not have a vicarious liability under s106(1) and s28B of the Sex Discrimination Act could therefore not render it unlawful or a valid reason for dismissal.
“Those who gathered there did so entirely of their own volition. It was in a public place. There was nothing in (the) Code of Conduct or relevant policies which suggested that they had any application to social activities of this nature. . . [the team leader’s] conduct in the upstairs bar was merely incidental to his employment.”
As for the intimidation and phone number request made of another female employee, this was a “boorish attempt by a drunk to lay the foundation for a future relationship with a woman whom he hardly knew” but was not sexual harassment and was not a valid reason for dismissal, the Commissioner said.
The Commissioner said the most serious allegation involved the team leader’s “aggressive, intimidatory and bullying behaviour” towards the “much younger and smaller” colleague of whom he demanded “Who the f..k are you? What do you even do here?”
While this was not included in the letter of termination, it did constitute a valid reason for dismissal. But as the “substance” of the allegation had not been communicated to the team leader, he was not given an appropriate opportunity to respond.
The Commissioner said this “procedural failure” was “surprising” given the size of the company and the fact it had “at least one human resources management specialist with expertise in this area.”
He also took into account the team leader’s “good record of continuous service”, the “isolated and aberrant” nature of the conduct and the “exacerbating” fact that his conduct was as a result of becoming intoxicated at the work function where he was “never refused a drink”.
“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,” the Commissioner said.
The team leader is seeking reinstatement but the company argued this is untenable due to unavailability of an equivalent position and the “personal workplace distress” to a colleague who complained about him if he returns to the same position and their shifts coincide. Compensation is being considered
Innes Willox, chief executive of the Australian Industry Group, said the commission 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,” Mr Willox said. “Employees, of course, also have responsibility to behave appropriately at work functions, and the commission’s decision is of concern in this area.”
This decision, particularly the comments around service of alcohol, has sharpened the focus of Managers’ and Team Leaders’ responsibility as the custodians of your organisation’s workplace culture and the key elements of the manager’s role in preventing and effectively managing bullying, harassment and discrimination issues in the workplace.
iHR’s Anti-Discrimination and Bullying training for Managers will assist in helping prevent the kind of behaviour seen in the above case.
