Most professions routinely engage in events involving the consumption of alcohol as a means to build team moral and network. However, a recent decision handed down by the Fair Work Commission (FWC) demonstrate that conduct displayed during these events can have significant consequences within the workplace.
John Keron v Westpac Banking Corporation
In John Keron v Westpac Banking Corporation[1] the Applicant had attended an official networking session which followed a training event with his employer (Westpac). Westpac had arranged for free drinks for a two-hour period at this post-training event. The Applicant, along with several other employees, attended the event and stayed on afterwards, purchasing their own drinks.
On the evening of this networking event, the Applicant became involved in two separate incidents which results in a workplace complaint and consequently, an internal investigation. The first incident took place almost 3 hours following the conclusion of the ‘free drinks’ event and involved the alleged inappropriate touching of a female colleague’s buttock and waist (referred to as ‘Witness A’). Footage of the incident form security cameras confirmed the allegation, and also that Witness A had earlier rubbed his back and also leaned into him after the inappropriate contact.
The second incident occurred later in the night and involved the Applicant being refused entry into the Casio. During this event, another female colleague had urged the security guard to refuse his entry, and as a result the Applicant had allegedly abused his colleague (using offensive language) due to her intervention.
Complaints were raised with Westpac in relation to both these incidents, and accordingly Westpac conducted an internal investigation which resulted in the recommendation that the Applicant being issued a ‘show cause’ notice. Despite this recommendation, Westpac elected to terminate his employment without notice.
Consequently, the Applicant brought an application for unfair dismissal.
FWC Outcome
The FWC found that the first incident had sufficient connection to the Applicant’s employment to be covered by Westpac’s policies, but that the second incident did not. Further, in consideration of the Applicant’s conduct during the first incident, it was determined that the dismissal was not harsh, unjust or unreasonable, noting that the bar for consent in relation to physical and sexual interactions had been raised, and that was even more the case in relation to workplace situations.
In relation to the first incident, the FWC also noted that, “while Witness A’s conduct of itself may well have constituted a breach of Westpac policies it does not itself provide a defence for [the Applicant’s] behaviour’[2].
The Applicant’s unfair dismissal application was therefore unsuccessful.
Sufficient Connection to the Workplace
In relation to the first incident, the FWC was satisfied that the networking drinks had sufficient connection with the Applicant’s employment to be subject to Westpac’s sexual harassment policy. Further, the FWC noted that, even though the function was held in a different location to the training, was not compulsory, and did not involve Westpac uniforms or signage, there was still a connection to the workplace. This connection was established by the fact that the group of employees had no connection outside of their employment and were socialising together at the location only due to the fact that they attended the same work mandated training. Such a connection, however, was not evident in relation to the second incident.
Lesson for Employers
The FWC, within its judgement, was highly critical of Westpac’s choice of networking event. “…Westpac should give consideration to whether the location they chose for networking events is one which all employees feel comfortable attending. They should also give consideration to whether the service of alcohol is necessary or even an appropriate element of work-related events given the poor judgement often associated with the consumption of alcohol. If alcohol is a necessary element of the event Westpac should ensure that its employees are safe during the course of the event, that there is a clear conclusion to the event and that the safe departure of employees is facilitated.”[3]
With that in mind, it is clear that employers should take into account their policies and values when selecting networking activities and venues. Accordingly, when planning a work event, employers should:
Need new workplace policies, or advice regarding work related events? Saines Legal is a full-service employment law firm and are here should you require advice regarding the above. Do not hesitate to contact us via info@saineslegal.com.au or (07) 3324 1055, to organise a consultation.
Disclaimer
The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.
[1] [2022] FWC 221.
[2] John Keron v Westpac Banking Corporation [2022] FWC 221 at 198.
[3] John Keron v Westpac Banking Corporation [2022] FWC 221 at 275.