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Beware the Self-Serve Bar

Stephen Keenan was dismissed from his role as team leader at Leighton Boral Amey’s joint venture in January 2015 after his conduct following the staff Christmas party at the Novotel Brighton Beach Hotel in Sydney offended many.  

It appears that Mr Keenan had himself quite the party becoming intoxicated after drinking about 10 beers and a vodka and coke.  
During the function, Mr Keenan apparently told a Leighton Boral Amey director to “f... off” and repeatedly asked another female colleague for her telephone number.

After the function’s official end at 10:00p.m., Mr Keenan then went to the public bar area, where he touched another female colleague’s face; told another he had considered her a “stuck up b....” and, without warning, grabbed another female co-worker and kissed her before saying “I’m going to go home and dream about you tonight”.

Mr Keenan allegedly told another female colleague “My mission tonight is to find out what colour your knickers you have on (sic)”.
After this display, Mr Keenan’s employment was terminated.

However, this wasn’t the end to the matter.  Rather, Mr Keenan pursued an unfair dismissal claim in the Fair Work Commission and has been successful in that claim.

In determining that Mr Keenan was unfairly dismissed, the Fair Work Commission held that, while Mr Keenan’s behaviour was deplorable, they were the impulsive acts of an intoxicated man.  

Mr Keenan, previously elected the AWU delegate in April 2014, was represented in the Fair Work Commission by the Union.
The Union successfully argued that Mr Keenan’s offensive behaviour occurred after the party had officially ended and took place in a public bar and in the street.  It was successfully submitted that the offensive behaviour occurred outside the scope of Mr Keenan’s employment and was properly characterised as private activity and could not therefore be a valid reason for dismissal.

The Fair Work Commission accepted this argument.  

In giving his decision, Mr Hatcher of the Fair Work Commission said “I do not consider that conduct which occurred at the upstairs bar can be said to be in connection with Mr Keenan’s employment …  The social interaction which occurred there was not, in any sense organised, authorised, or induced by (the employer).  Those who gathered there did so entirely of their own volition.  It was a public place”.

Mr Hatcher also found that the fact that the employees could help themselves to beer from an esky at the Christmas party was an exacerbating factor.  He went on to say “In my view, 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 at the function… If alcohol is supplied in such a manner, it becomes entirely predictable that some individuals would consume an excessive amount and behave inappropriately”. 

While Mr Hatcher considered Mr Keenan’s behaviour was at times, aggressive and bullying, his dismissal was still harsh and unjust. 

Having determined that the dismissal was unfair, a further hearing will now be held to determine if Mr Keenan should be reinstated.

This decision serves as a timely reminder to employers that they should be clear in their expectations of behaviour of employees at work-related gatherings and further the implications which may arise by providing an unlimited supply of alcohol available for guests to serve themselves.    

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