HO HO HO with NO NO NO claims

As the holidays approach, we take this opportunity to remind employers to familiarise themselves with their workplace policies and to be mindful of their obligations.  Employers should be aware that an employee’s conduct can extend beyond the traditional workplace to the Christmas show and social media activity.

We recommend that employers implement the following:

  1. Remind employees of their obligations at work-related functions including during and after the event.
  2. Limit the amount of alcohol employees may consume by implementing a drinks package or tab.
  3. Ensure employees understand that any gifts in relation to Kris Kringle, greetings, cards etc must be “G” rated. The days of “vibrating gifts” has passed!
  4. Ensure that at least one senior staff member does not consume alcohol during the event and monitors employee consumption.
  5. Consider providing a taxi voucher, cab charge or reimbursement to employees for their transportation to and from the event.

Unfortunately, things do go wrong at the staff Christmas function, leading to employers starting the new year defending claims in the Fair Work Commission (FWC).

Below are some examples of what happens when employees get carried away during the silly season.

BHP Brawl

In a recent 2019 decision, two employees made an unfair dismissal claim against BHP following their dismissal after the 2018 Christmas function. [1]

It was alleged that during the Christmas function the two employees, Mr Drake and Mr Bird were involved in a physical fight with another employee, Mr Maunder. Mr Maunder suffered injuries to his head. Mr Drake and Mr Bird’s employment was subsequently terminated, and they both lodged an unfair dismissal claim.

The evidence revealed that Mr Drake started the argument by asking Mr Maunder “what are you Coalies doing here, is your Christmas Party over?” When Mr Maunder retaliated, Mr Bird joined in. The argument escalated resulting in a physical brawl between all three men.

The FWC found that the dismissal of Mr Drake was fair as it was established he had punched Mr Maunder more than once, and there were no extenuating circumstances to mitigate his conduct.

Conversely, the dismissal of Mr Bird was held to be unfair because the FWC could not find that he was guilty of the misconduct that the employer acted on. Consequently, BHP was ordered to reinstate Mr Bird to his previous position.

This case serves as a reminder to employers that when terminating an employee for misconduct the burden will be on the employer to prove that, on the balance of probability, the conduct has occurred. The more serious the allegation, the higher the burden on the employer to prove the allegation.

When the joke is just not funny

In a 2018 decision, the FWC found in favour of an employer that dismissed an employee, Mr Colwell, for sending around a pornographic “Christmas greeting” on Facebook Messenger.

It is alleged that the employee received a message on Facebook Messenger from a female friend.  The message included a video.  The message read (as written):

Need your address to send your Early Christmas Box Mate [wink emoji].. I Only usually send stuff like this 2 my Bloke mates [name of friend], but sure youll Handle it, Lol [wink emoji].”

The video in question was 10 seconds long.  It showed a sealed cardboard box being opened with the audio capturing the sound of packaging taping removing/ripping off what a appears to be a mans shirted arm. The video then continues to show pornographic footage of a female.

The employee claims to have regretted sending the message to so many people and posted an apology on his Facebook the following day.

Unfortunately for the employee however, the damage had already been done. A female colleague who received the message reported Mr Colwell for harassment and he was subsequently dismissed.

The FWC found in favour of the employer, finding that the message was a clear breach of the employer’s workplace policies and in light of the complaint made, it was appropriate to dismiss the employee.

Have a merry and safe Christmas from the Lynch Meyer workplace relations team!

[1] Drake & Bird v BHP Coal Pty Ltd [2019] FWC 7444