Can you dismiss an employee for behaving badly outside of work hours?

The silly season isn’t far away, which means that the office Christmas party, an event where things can easily get out of hand, is just around the corner.

How can you, as an employer, ensure that your employees get to relax and have a pleasant time at work functions, such as the Christmas party, without offending, upsetting or harassing their colleagues?

Can you dismiss an employee who behaves badly on that night, especially when they’ve been told what kind of conduct is expected of them?

How can you minimise the chances of bad behaviour at the Christmas party or any other work function?

What does the Fair Work Commission (FWC) have to say on the issue of dismissing an employee for behaving badly outside of work hours?

Recently, the FWC threw some light on these issues, when it reaffirmed that employers need to make sure that the conduct they are relying on is connected to the employee’s employment, and explained where that line should be drawn.

Can you dismiss an employee for behaving inappropriately at a social event that work colleagues also attended?

Vice President Hatcher reviewed a decision to terminate a manager who abused both his bosses and junior employees on the night of the Christmas party. The manager became heavily intoxicated during the event.

At the party, the manager was extremely rude to some senior colleagues and told one to ‘f**k off’.

He asked another colleague, ‘Who the f**k are you? What do you do here?’

He then said to a female staff member he barely knew, ‘I want to ask for your number, but I don’t want to be rejected.’

Afterwards, the manager and some other colleagues went to a nearby bar. At the bar, the employee:

• sexually harassed a number of female co-workers
• bullied and intimidated a junior employee.

The manager was dismissed as a result of his conduct.

Was the employer justified in terminating the manager’s employment?

After looking closely at the evidence, Vice President Hatcher held that the manager’s conduct at the Christmas party (which was determined to be in connection with his employment) was not sufficient to justify his dismissal.

He then examined the manager’s conduct at the bar. He held that although some of the manager’s conduct constituted sexual harassment, it did not justify his dismissal because it was not in connection with his employment.

Why?

The gathering at the bar had not been ‘organised, authorised, proposed or induced’ by the employer. In addition, there was nothing in the employer’s code of conduct or relevant policies that suggested they had any application to social activities of this nature.

The vice president went on to state that since the employee had been supplied with excessive amounts of alcohol at the Christmas party, even after he was blatantly intoxicated, the employer could not expect the same standard of behaviour from the employee when it had irresponsibly contributed to his intoxication level in the first place.

For these reasons, Vice President Hatcher decided that the behaviour could not be relied on as a basis to fire the employee. In short, the dismissal was held to be unfair and the employer was ordered to reinstate the employee.

What does the decision mean for employers?

This case demonstrates that the line between work and out of work is a fine one, especially when examined in a legal context.

It also shows that employers do have a certain amount of control over this distinction, and that they should take the time to define behavioural expectations and how far these will extend at (and after) workplace functions. As a result, it is advisable to specify conduct expectations at out-of-work functions within company policies.

Finally, employers should ensure that the provision of alcohol at work functions is managed responsibly.

Are you an HR Assured client? Do you need any assistance drafting policies on conduct expectations for work functions and out-of-work functions? If so, feel free to call our Telephone Advisory Service.