When can employ­ees behave bad­ly and get away with it?

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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? 

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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.

Les­son

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.