In a recent decision of the Fair Work Commission (FWC) that has surprised many, an employee who repeatedly made undesired romantic and sexual propositions to various co-workers, and kissed someone in an unsolicited and unprovoked manner on the evening of a work Christmas party, has won his case for unfair dismissal.
Leighton Boral Amey NSW Pty Ltd argued that such behaviour by Mr Keenan was in breach of the core values of any workplace, including health and safety, and that as a team leader, the employee’s actions were particularly reprehensible. It was also argued that the behaviour satisfied the legal definitions of sexual harassment and as such was unlawful. For these reasons, the company felt it had no alternative but to terminate Mr Keenan’s employment.
However, according to the FWC, because most of the incidents occurred after 10pm when the work event had concluded, or outside of the official venue for the party (at an upstairs bar and outside on the street), those incidents were “out of hours” occurrences that were not directly work related and therefore should be assessed using a different test. They would only be relevant to Keenan’s contract of employment if it could be shown that members of the public would be able to identify Keenan as a representative of the company. There was nothing to identify Keenan as the company’s employee for these out of hours incidents.
The only up side for employers from this case is that FWC also held that the company could not be held vicariously liable for the actions of the employee. Under sexual harassment laws, in the workplace an employer will usually be held vicariously liable when one employee harasses another unless the employer can demonstrate that it took all reasonable steps to prevent workplace harassment. In this instance, because the incidents were held not to have occurred in connection with work, the employer could not be sued by the victims of Keenan’s harassment.
One take away message for employers is to set clear time frames and location descriptions for work parties. For example, the invitation may read, “Please join us in the Africa Room at the Drinkwater Hotel between the hours of 7pm and 10pm to celebrate our company’s outstanding achievements this year.” In this way, if drunken behaviour occurs later, or outside the event venue, you will have better protection from any vicarious liability. It would also be prudent to ensure that no workers become intoxicated at workplace events for the safety of all staff.