20 July 2015 When can employees behave badly and get away with it?

By Warwick Ryan, Partner

In Brief

One of the challenges for any employer is to manage workforce events such that the employees get to relax and have a good time – without offending, upsetting or harassing their colleagues.

One of the key culprits in this process is the obligatory office Christmas party.  What happens when staff behave badly on those nights? 

The facts

In a recent decision of the Fair Work Commission, which may well be appealed given its outcome, the Commissioner reviewed the termination of a manager who had abused both his bosses and junior employees and behaved boorishly with females on the night of the Christmas party. 

In total there were eight examples of bad behaviour on his part including saying to a boss:

"F**k off"

And to another employee:

"Who the f**k are you? What do you even do here?"

And to a female staff member he barely knew:

"I want to ask for your number, but I don’t want to be rejected”."

Each of these were considered individually – particularly in the context when they were made.  Deputy President Hatcher came to a view that most of those comments were made outside the venue after it had finished. 

It was his view that because they were made in the street and in a subsequent public bar, that they were not connected to the workplace.  His view in this regard is brittle.  There are a number of cases where employees after workplace events have been found to have been acting in connection with their work, but in this case the Commissioner took a different view and found in favour of the employee. 

In relation to the comment whereby the manager demanded the telephone number of a woman he barely knew, the Commissioner found that this was merely boorish behaviour rather than sexual harassment.  There is some merit in that view.  If the employee had persisted with those requests throughout the night, it would have amounted to sexual harassment. 

Deputy President Hatcher acknowledged that the employer had sent out a memo beforehand setting out clear guidelines on behaviour and what the expectations of staff were in relation to their conduct to one another during that evening.  It was his view that that directive ceased to have effect upon the employees leaving the venue. 

Importantly, Deputy President Hatcher also made comments about the fact that the employer supplied unlimited alcohol to staff whilst at the same time expecting that they behave themselves.  This raises a significant challenge for employers in providing a function that is enjoyable and relaxing for staff and yet not being excused of facilitating bad behaviour by the provision of alcohol.


The outcome of this case invites employers – when they organise functions – whether it be a Friday afternoon BBQ or a Christmas party, to think through how they are going to manage the behaviour of their staff at the event and furthermore for larger companies to implement some guidelines on behaviours at events and to ensure that staff sign off on them before attending.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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