Preamble 

With the festive season in full swing, employers and employees can be caught up in events that may not appear work-related on the surface but have major implications for employment relationships. 

 

Scenario 

The company has decided to organise a staff Christmas party that will be held on a Saturday and located off work premises.

We intend to issue a directive to staff regarding what constitutes unacceptable behaviour by employees who attend the party.  

It will also state that any seriously offensive behaviour by an employee at the party may result in the employee’s dismissal.  

Some of management have queried the right of the employer to terminate an employee’s employment when the behaviour occurs outside normal work hours and off the company’s premises. 

 

Question 

In this circumstance, can the employer enforce the directive that dismissal may result if an employee seriously misconducts themselves at the party?  

 

Answer 

Industrial tribunals have generally determined that conduct that gives rise to a material risk (or potential risk) of damage to an employer’s interests, may nevertheless be conduct that attracts the legitimate concern of the employer and, depending on the circumstances, conduct that justifies the employee’s dismissal.  

This determination means there must be a clear and relevant connection between the employee’s out-of-hours conduct and the employee’s employment.

 

Examples of fair dismissals  

Circumstances in which the employer has successfully argued before the Fair Work Commission (or its predecessor) that the employee’s dismissal was fair include: 

  • the dismissal of an employee because of offensive behaviour in a hotel room after a combined Christmas party and farewell party  
  • the dismissal of an employee who punched a fellow employee in the face at a private New Year’s Eve party attended by other employees 
  • the dismissal of a male employee who used offensive, abusive and threatening language towards a female colleague at a motel being used by staff in connection with a company training course 
  • the dismissal of an employee of a brewing company after being convicted of high-range drink-driving, while driving out-of-work hours in a privately-owned vehicle. 

 

Company policy  

While the staff directive regarding the potential consequences of an employee’s offensive behaviour at the party is important as a defence in any subsequent unfair dismissal matter, it is advisable the company introduce a company policy that deals with out-of-hours conduct by employees.

 

Bottom line 

It should be noted that whether such a termination is harsh, unjust or unreasonable, even when there is a valid reason, it will remain determined by FWC in all circumstances.  

This includes whether the employee was afforded procedural fairness before the decision to dismiss the employee was made by the employer.