As the festive season approaches, employers and employees alike are turning their minds to the forthcoming Christmas party. So what behaviour is considered acceptable, and what will give rise to a valid reason for dismissal? In January this year, the Fair Work Commission (FWC) ruled in favour of the employer in the case of Damien McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343. The case related to unfair dismissal, where the employee had engaged in unacceptable behaviour and misconduct at the staff Christmas party. As a result, his employer summarily terminated his employment. Below, we examine the FWC’s decision, the criteria for unfair dismissal and the key takeaways for employers.

What Happened?

In this case, the employee Damien McDaid was a project coordinator at engineering company Future Engineering and Communication Pty Ltd (FEC). During his employment, his colleagues had previously noted that he sometimes behaved in a domineering or aggressive manner at work.

In December 2014, FEC had arranged a day of go-karting followed by a Christmas party at the office (which had a swimming pool) for its employees. At the party, there was an unlimited amount of alcohol for employees to consume.

During the party, McDaid became inebriated and started behaving aggressively towards a colleague, Mr Sinna, who was a senior engineer at FEC. Those at the party saw McDaid push Mr Sinna in the chest a few times in an aggressive manner before ultimately pushing him fully clothed into the swimming pool.

After this incident, McDaid’s general manager, Craig Davies, asked him to leave. When McDaid refused, their conversation escalated into a fight. Both McDaid and Davies were injured. McDaid eventually left the party.

Following his return to work, FEC told McDaid that they would investigate his behaviour and conduct at the party. Two months later, FEC called McDaid to a meeting which he attended with a support person. He was given notice in writing of his dismissal with reasons and given an opportunity to respond. McDaid maintained that he had no recollection of what had occurred at the party, and subsequently accused FEC of unfairly dismissing him.

What Does the Law Say?

Section 387 of the Fair Work Act 2009 (Cth) sets out the criteria for whether a dismissal is “harsh, unjust or unreasonable”. There are eight key factors that the FWC must take into account, including:

  1. Whether there was a valid reason;
  2. Whether the employer notified the employee of the reason;
  3. Whether the employee had the opportunity to respond;
  4. Whether there was unreasonable refusal to allow a support person to attend discussions relating to the dismissal;
  5. Whether the employer had warned the employee about unsatisfactory performance, if applicable;
  6. The size of the employer’s enterprise and its relevant procedures;
  7. Any absence of a dedicated HR manager; and
  8. Any other relevant matters.

What Did the Fair Work Commission Decide?

The FWC ruled for the employer, holding that in this case, there were three valid reasons for the dismissal, namely:

  • McDaid had aggressively and repeatedly “harangued” a colleague before pushing him into a pool;
  • McDaid refused to leave the office premises when told to do so by his manager;
  • McDaid initiated a fight with his manager by pushing him and injuring him.

The FWC was also satisfied that the rest of the criteria had been fulfilled (noting the fifth criteria was inapplicable as the dismissal was unrelated to McDaid’s work performance).

As the employer had properly followed and satisfied each criterion in section 387, McDaid’s dismissal was not harsh, unjust or unreasonable.

Other Relevant Factors

In making its decision, the FWC also took into account three other relevant matters, as set out below.

1. Past conduct

Several colleagues had said McDaid previously behaved in a verbally aggressive manner in the workplace. Against this background, the FWC held McDaid’s behaviour was not surprising or out of character.

2. Self-defence

In response to criticism that Davies had also injured McDaid in the fight, the FWC held that this was a valid self-defence since Davies had not initiated the fight.

3. Alcohol Consumption

The FWC also considered whether the employer should be responsible for supplying unlimited alcohol. The FWC notably held that in some circumstances, an employer that provides alcohol at a work function and takes “no steps to ensure it is consumed responsibly” may also be responsible for any events attributable to employee intoxication.

For example, an employer can be held responsible for a drunken employee who injures themselves falling down stairs. However, employees who drink are also responsible for their actions. Since “society no longer readily accepts” alcohol as an excuse for bad behaviour, the FWC would not accept McDaid’s inebriation as an excuse for his conduct.

Key Takeaways

While in this case, the employer was able to justify the validity for their employee’s dismissal, it is important for employers to remember that they still have a legal duty of care and responsibility for their employees. Misconduct towards other employees may not always be grounds for valid dismissal. As the festive season rolls around and the office Christmas parties begin, employers should remember the following:

  • Employers have a duty to ensure responsible supply and consumption of alcohol and may be liable in particular to any accidents that occur as a result of alcohol intake;
  • Employees should all be made aware of workplace policies regarding acceptable and unacceptable behaviour;
  • Before any dismissal, it is important to ensure employees are properly notified and given an opportunity to respond to reasons for dismissal; and
  • Each unfair dismissal case will turn on its facts, and valid reasons can be wide-ranging.

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Lianne Tan
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