Silly season at work risks and responsibilities

©2017 Australian Business Lawyers & Advisors. All Rights Reserved
Your risks and responsibilities
Preparing for the silly season
Presenters
Joe Murphy, Director
Luis Izzo, Director
Workplace Relations and Employment
Team of the Year

Objectives
 How to prepare your organisation for the
party season
 Steps to take to minimise or prevent
incidents occurring
 What to do when things go wrong
2©2017 Australian Business Lawyers & Advisors. All Rights Reserved

Agenda
When is your business at risk
• The right to direct and control employee behaviours
• Cases that provide guidance as to when it is out of
your control
Tips to managing workplace parties
• Communications to send to staff
• RSA/access to workplace/transport home
Dismissing employees for misconduct
• Unfair dismissal claims

Business risks
The right to direct and control
General rule
Employers do not have the right to control or
regulate an employee’s out-of-hours conduct.
Conduct may be out-of-hours where:
• It is not during work time
• It is not at the workplace

Business risks
out-of-hours conduct
The seminal Fair Work Commission decision:
Telstra v Rose [1998] AIRC 1592
Principles from Telstra v Rose
Disciplinary action can be taken where the conduct:
• is likely to cause serious damage to the employment
relationship; or
• is likely to cause damage to the employer's
interests; or
• is incompatible with the employee's duties as an
employee

Business risks
Work related events
• Extension of the workplace where events are
organised, promoted and funded by work
• Especially where event occurs during normal
working hours but can extend to social functions
• The risks for your business lessen where the
business has less involvement

Recent Xmas party case
Unfair dismissal
Keenan v Leighton Boral Amey [2015] FWC 3156
Facts : Employer X’mas party involving alcohol and food
During the official function the employee:
• Verbally abused senior staff members
• Used expletives in an offensive and direct manner when
speaking with a range of staff
• Made inappropriate advances to a female staff member

Unfair dismissal
After the official function, guests proceeded to
the “public bar area” within the same hotel
• Used further expletives and inappropriate language
directed at female members of staff
• Kissed a female employee without warning
• Made comments of an inappropriate nature that
could be described as comments of a sexual nature
The Employer only dismissed team leader in
January

Unfair dismissal
Decision
The Vice President held the dismissal was harsh because:
Not all the events were ‘at work’:
• Events occurring within hours and room where party took place
• Nothing post function was considered connected to work
The employee was not given procedural fairness:
• While the conduct warranted dismissal:
 He was not given appropriate opportunity to respond
 Unlimited service of free alcohol was a factor

Recent work function case
Fair dismissal
Rogers v Allianz Australia [2017] FWC 537
Team building event held at a yacht club
• Work organised event held in an allocated venue
• Staff ‘move on’ to bar next door
• Staff then agree to ‘kick on’ to another venue
• Two employees catch a taxi together to the next venue
In the taxi:
• The employees argue about work matters and the male said to the
female:
“Be quiet or I’ll touch your v****a like everyone else has
done tonight.”
1 0©2017 Australian Business Lawyers & Advisors. All Rights Reserved

Recent work function case
Fair dismissal
Conduct likely to cause serious damage to employment
relationship:
• absence of any regret or apology
• serious damage to capacity for the employees to work together
Work connection factors included:
• No specified finishing time for the work function
• Activity in the bar was not unrelated private function, but was a
continuation of the earlier function
• comment made was in response to comments about work
• Common employment was considerably more than a mere
incidental factor

Making sense of the
case law
• How do the Keenan v Leighton Boral Amey and
Rogers v Allianz decisions sit together?
• Are we seeing a consistent approach from the FWC
on these issues?

Tips for your upcoming
work event
Pre-party communication
• Behavioural expectations
• Start and finish times
• Guidelines re: consumption of alcohol
• Guidance regarding use of motor vehicles
At the event:
• RSA
• Moving people on after the event
Post the event
• Transport home
• Limiting access to the workplace

Legal risks –
unfair dismissals
• Was the termination “harsh, unjust or
unreasonable”?
• Substantive fairness – need ‘valid’ reason:
• conduct or performance
• sound, defensible and based on fact
• Procedural fairness: - a consideration of ‘due
process’
• what steps were taken prior to dismissal
• was natural justice afforded?

Process
Situation + Context

Actions
• Ensure policies and procedures up to date
• Provide appropriate direction to staff in writing in
advance of any function
• Senior staff should remain vigilant
• Investigate any complaint (including any
‘informal’ complaints or rumours)
• Take action to send the right message
• Feel free to call us for support, if only to confirm
you are on the right track

Contact us
NEWCASTLE
Suite 402, Level 4
Watt St Commercial Centre
Newcastle NSW 2300
Phone : 02 9458 7005
www.ablawyers.com.au
BRISBANE
10 Felix St
Brisbane QLD 4000
Phone : 02 9458 7005
Joe Murphy
Director
Joe.murphy@ablawyers.com.au
Luis Izzo
Director
Luis.izzo@ablawyers.com.au
SYDNEY
10/140 Arthur St,
North Sydney
NSW 2060
Phone : 02 9458 7005

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