Unfair Dismissal and the work Christmas Party

The Issue

In the aftermath of the office Christmas Party, stories may abound that a colleague consumed too much alcohol and did something that made them feel very embarrassed the following morning.

In recent years, the Fair Work Commission has heard a number of matters in which drunken employees were dismissed for bad behaviour at their respective work Christmas parties. However, one dismissal was deemed unfair, while in others it has not been determined to be unfair. Why?

Misbehaving employees

In Keenan v Leighton Boral Amey NSW Pty Ltd, a drunken employee was dismissed for verbally abusing his boss and sexually harassing a fellow colleague. Despite the employee being warned that the usual workplace code of conduct would apply at the Christmas party, the Commission still found that the employee's dismissal was unfair.

In reaching this decision, the Commission determined that the employee's bad behaviour was "isolated" and completely out of character. The Commission laid blame partly on the fact that free alcohol was supplied by the employer, noting that 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."

In Vai v Aldi Stores (A Limited Partnership), an employee was dismissed for misbehaviour at a work Christmas party at which the employer also supplied free alcohol. In this matter, the employee threw a full glass of beer towards other employees. However, in this case, the Commission found the dismissal to be fair.

Why the difference?

Unfortunately, it is not obvious why one dismissal was unfair and the other was not. The conduct of the employee in Keenan was arguably more serious than the conduct in Vai. However, in the case of Vai, the work function was at a hotel where the serving of alcohol was controlled and where there were senior staff present to supervise. In Keenan, employees were able to serve themselves alcohol and no one was given the task of supervising the function.

Is there a precedent?

The contrasting outcomes in the two cases make it difficult for employers to know whether it would be unfair for them to dismiss an employee who has misbehaved at a work function. The Commission has shown itself willing to hold employees responsible for their own bad behaviour where the employer has acted responsibly in the provision of alcohol. However, where free alcohol is provided to employees without supervision, then an employer may have difficulty holding its employees responsible for their bad behaviour at work parties.

What can employers do?

To help limit the possibility of bad behaviour at your next work party, consider either limiting the amount of alcohol supplied or choose not supply any alcohol at all. We also recommend employers make clear to employees prior to any party that the behaviour expected of them at the party will be the same that is expected when they are attending work.

If limiting alcohol is not an option, employers must accept that some employees may consume too much alcohol and behave badly. While each matter is determined by its facts, the above cases indicate that the more alcohol an employee consumes, and the more their subsequent bad behaviour is considered to be out of character, the more likely any dismissal for that bad behaviour will be deemed unfair.

For further information on unfair dismissal, visit our article: Employment termination.

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