{"id":1185,"date":"2019-11-28T10:57:46","date_gmt":"2019-11-28T00:57:46","guid":{"rendered":"http:\/\/workplaceculturematters.com.au\/?p=1185"},"modified":"2025-07-05T13:34:33","modified_gmt":"2025-07-05T03:34:33","slug":"work-christmas-parties-employees-may-risk-more-than-their-dignity","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=1185","title":{"rendered":"Work Christmas Parties &#8211; Employees May Risk More Than Their Dignity"},"content":{"rendered":"\n<p>The\nsilly season is fast approaching and the annual work Christmas parties will be\nstarting to happen. The combination of end-of-year cheer and alcohol can create\nsome less than ideal situations for employers. Most employers will start the\nnew year with a \u2018forgive and forget\u2019 attitude to the embarrassing dancing or terrible\nkaraoke singing. It is also reasonable to expect that one or two employees in\nany given year will drink a little more alcohol at the end of year party than\nthey initially intended. While this may involve a loss of dignity, generally this\nconduct is regarded by both employers and colleagues as part of the fabric of\nthe modern workplace. But what happens when an employee goes too far? At what\npoint does \u2018drunken cheer\u2019 become a disciplinary issue. <\/p>\n\n\n\n<p>Employees\nshould be aware that their behaviour at these events may affect their\nemployment. Their behaviour can result in the issuing of a warning, a final\nwarning or worst-case scenario, termination of their employment, even if the\nevent occurs after work hours. <\/p>\n\n\n\n<p>However, employers should not discipline an employee for out of hours conduct too hastily. An employee may only be disciplined for out of hours conduct in circumstances where the situation is found to be work related. <\/p>\n\n\n\n<p>The\nrequirements for when conduct is work related was set out in <a href=\"http:\/\/www6.austlii.edu.au\/cgi-bin\/viewdoc\/au\/cases\/cth\/AIRC\/1998\/1592.html?query=#fnB29\"><em>B.\nRose v Telstra Corporation Limited<\/em> [1998] AIRC 1592<\/a>, and are:<\/p>\n\n\n\n<ul><li>objectively the employee\u2019s conduct is likely to\nseriously damage the employer\/employee relationship;<\/li><li>the employer\u2019s interests are damaged; or<\/li><li>the employee\u2019s conduct was incompatible with\ntheir employee duties.<\/li><\/ul>\n\n\n\n<p>The\nFair Work Commission recently provided a reminder of this outcome in the case\nof <a href=\"http:\/\/www.austlii.edu.au\/cgi-bin\/viewdoc\/au\/cases\/cth\/FWC\/2019\/7444.html?context=1;query=%5b2019%5d%20FWC%207444;mask_path=#fnB24\"><em>Mr\nBradley Drake v BHP Coal Pty Ltd <\/em>[2019] FWC 7444<\/a>. The case involved two\nunfair dismissal applications of Mr Drake and Mr Bird. At their crew\u2019s\nChristmas party last year, Mr Drake and Mr Bird were involved in a verbal and\nphysical altercation with another employee, Mr Maunder. Mr Drake further\nadmitted to making offensive comments to a Ms H, saying \u201cdo you have fake\ntits?\u201d and \u201call the girls have them, you can\u2019t come to [excavator] strip 44 unless\nyou have fake boobs\u201d. Mr Drake and Mr Bird asserted that they did not know that\nthe party was organised by BHP or that BHP had contributed to the Christmas\nparty. They believed it was an employee organised event and if they had known\nthey would have acted differently. <\/p>\n\n\n\n<p>BHP\ncommenced an investigation into the situation after Mr Maunder made a complaint\nthat he had been punched by two employees at the Christmas party. During their\ninterviews both Mr Drake and Mr Bird said they could not remember if they had\npunched Mr Maunder. Following the investigation BHP found that both Mr Drake\nand Mr Bird had punched Mr Maunder and they were both terminated. Mr Maunder\nwas also terminated but requested the opportunity to resign which was agreed\nto.<\/p>\n\n\n\n<p>Deputy\nPresident Asbury found on the balance of probabilities that Mr Bird did not\npunch Mr Maunder but was involved in a verbal altercation with Mr Maunder which\nended in both Mr Bird and Mr Maunder grabbing each other by their shirts. It\nwas found, on the balance of probabilities, that Mr Drake started the verbal\naltercation with Mr Maunder and that Mr Drake punched Mr Maunder more than once.\nAdditionally, Deputy President Asbury held that the Christmas party had the\nrequisite connection to BHP and that it was more probable than not that Mr\nDrake and Mr Bird knew that the Christmas party was organised by BHP. Deputy\nPresident Asbury provided that if this was incorrect there was sufficient\nfactors to establish that the event was work related:<\/p>\n\n\n\n<ul><li>90 people attended, consisting of 60 employees\nand 30 family members;<\/li><li>they were gathered at one venue;<\/li><li>they were gathered for a common purpose, to\ncelebrate Christmas;<\/li><li>the employer\/employee relationship will be\nseriously damaged when an assault between two employees happens in a public\nplace in front of other employees;<\/li><li>where a large group of employees gather to drink\nalcohol in a public place in a town where BHP is a large employer the action of\nemployees can damage the interests of BHP; and<\/li><li>members of the public being present will\nincrease the damage to BHP\u2019s interests.<\/li><\/ul>\n\n\n\n<p>Deputy\nPresident Asbury stated that employees should not need to be told that when\nthey gather in large numbers in a public place after work hours that their\nemployment may be at risk if they get into altercations, either with another\nemployee or a member of the public.<\/p>\n\n\n\n<p>It\nwas held that Mr Drake\u2019s dismissal was valid and not unfair. Mr Drake had\nbreached BHP\u2019s Charter of Values and the Code of Business Conduct. Whereas, Mr\nBird\u2019s dismissal was held to be unfair as it was harsh, unjust and\nunreasonable. It was harsh because it was disproportionate to the gravity of Mr\nBird\u2019s conduct, Deputy President Asbury stated that the conduct, verbal\naltercation and grabbing Mr Maunder by the shirt, amounted to a final warning,\nand the dismissal affected Mr Bird\u2019s personal and economic situation. It was\nunjust because Mr Bird was not guilty of the misconduct alleged to be the\nreason for his dismissal and because BHP incorrectly found that Mr Bird had\npunched Mr Maunder. It was unreasonable as the inferences used by BHP to find\nthat Mr Bird had punched Mr Maunder were not available. An order for Mr Bird to\nbe reinstated was issued. However, Mr Bird\u2019s conduct at the Christmas party and\nduring BHP\u2019s investigation resulted in a deduction of 75% in the order for lost\nremuneration.<\/p>\n\n\n\n<p><strong>Take\nHome<\/strong><\/p>\n\n\n\n<p>Employees\nshould be aware that their actions at the work Christmas party, or other work\nfunctions, can affect their employment.<\/p>\n\n\n\n<p>Employers should carefully consider the criteria to establish that the function is work related before disciplining an employee due to conduct at out of hours functions. Employers should also take measures (including undertaking an investigation if appropriate) to substantiate any claims of employee misbehaviour, as well as providing appropriate procedural fairness to any employee throughout any disciplinary process. Procedural fairness requirements include putting the employers concerns relating to the employee\u2019s conduct to the employee, and giving them an opportunity to respond prior to making any final decision, and providing the employee with the opportunity to have a support person present at all meetings in which termination of employment may be an outcome.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The silly season is fast approaching and the annual work Christmas parties will be starting to happen. The combination of end-of-year cheer and alcohol can create some less than ideal situations for employers. Most employers will start the new year with a \u2018forgive and forget\u2019 attitude to the embarrassing dancing or terrible karaoke singing. It [&hellip;]<\/p>\n","protected":false},"author":21,"featured_media":1186,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[236],"tags":[97,14,30,114],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1185"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/21"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1185"}],"version-history":[{"count":1,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1185\/revisions"}],"predecessor-version":[{"id":1187,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1185\/revisions\/1187"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/media\/1186"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1185"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1185"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1185"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}