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Norman Waterhouse

Don’t let your Christmas party hangover linger

Returning to work in the New Year can be daunting for employers and employees alike as recollections of drunken antics and festive fun at the work Christmas party can be a hard pill to swallow for some. If an alleged breach of an employment condition occurs, many issues can arise such as employees not being able to recall their actions or arguing that an incident did not occur at a workplace event. As such, it is important that employers make clear their expectations of employees before a function and if an incident has occurred, that it is properly investigated.

In the recent case of Drake & Bird v BHP Coal Pty Ltd [2019] FWC 7444, the Fair Work Commission (the Commission) considered whether two employees who got into a physical altercation with a supervisor at a work Christmas party were unfairly dismissed.

Facts

Mr Bradley Drake and Mr Andrew Bird (collectively, the Employees) were employed by BHP Coal Pty Ltd (BHP). Both employees worked at a mine known as Eureka. On 6 December 2018, the Employees attended what they thought was a “PJ night”, an event where members of the Employees’ team get together to socialise and drink. The drinks function was held at the Moranbah Bowls Club.

BHP funded the costs of the event including the food, bowling and hire of two 48 seat buses as it was the final social event before Christmas. Further, BHP had distributed flyers in every Employee's workplace to notify them of the event. However, the Employees asserted that they attended the event without knowledge that it was a workplace event or that BHP had any involvement in the event.

Towards the end of the evening, Mr Drake approached Mr Rod Maunder, BHP’s Coal Mining Supervisor. Mr Drake was allegedly aware that the Coal Mining Department was having a separate party, and as such stated words to the effect of “What are you doing here? Have you coalies finished your party?” Mr Maunder replied words to the effect of “Mind your f****** business. You are a wanker.”

A short time later, Mr Maunder and Mr Bird engaged in a heated exchange resulting in Mr Maunder grabbing Mr Bird by the shirt. Mr Drake intervened by punching Mr Maunder but was then pulled away from the altercation. Mr Maunder suffered facial injuries as a result of the altercation. Further, it was noted that at one point in the evening, Mr Drake made offensive comments towards a female colleague, stating words to the effect of “you can’t come to 44 strip unless you’ve got fake tits. All the girls have got them”.

The following day, BHP commenced an investigation into the allegations against the Employees and they were both suspended. The Employees asserted that they acted in self-defence and in any event, were unaware the event was a workplace event, stating “I probably wouldn’t have acted the way I did, from what I recall, if I knew it was a work function”. Further, Mr Drake stated that he had immediately apologised for the inappropriate comments he had made to his female colleague.

BHP determined that the allegations against the Employees were substantiated. On 24 January 2019, the Employees’ employment was terminated on the basis that they had breached BHP’s Code of Conduct and ‘Charter Values’.

Decision

In determining whether the Employees were unfairly dismissed, the Commission considered whether the event on 6 December 2018 was an informal arrangement made by employees and or an organised workplace event of BHP.

The Commission made it clear that it did not accept that the Employees were unaware that they were attending a workplace event. In particular, the Commission stated that “even if the function was not organised by BHP, I would find that it was work related because it was attended by some 60 persons who all worked on the same crew and on the same roster and their family members.”

In any event, the Commission held that “the event was work related and BHP was entitled to take disciplinary action against employees who engaged in conduct that breached the Company’s Charter Values and Code of Business Conduct.”

The Commission held that “the behaviour of both Mr Drake and Mr Bird was offensive, insulting, intimidating, malicious and humiliating” and breached BHP’s Code of Conduct and ‘Charter Values’. Further, the Commission held that Mr Drake’s comments towards his female colleague were also in breach of BHP’s Code of Conduct and ‘Charter Values’.

Further, the Commission held that there was “no excuse for Mr Drake punching Mr Maunder” and that his conduct was sufficiently connected to his employment. As such, Mr Drake’s conduct constituted a valid reason for dismissal.

Conversely, the Commission noted that although Mr Bird’s conduct was “completely inappropriate and worth of strong censure”, the Commission was unable to determine whether Mr Bird had punched Mr Maunder and as such, there was not a valid reason for his dismissal. On this basis, Mr Bird was reinstated to his former position. However, the Commission imposed a 75% reduction from any amounts awarded for lost remuneration in consideration of Mr Bird’s conduct.

Take home message.

This case serves a timely reminder moving forward into 2020, that employers make sure employees understand the standards of behaviour that is expected at workplace functions, especially where alcohol is involved. Employers should ensure that they have an appropriate policy in place and that employees are to refrain from misconduct.

If an incident occurs, employers should thoroughly investigate and address it as soon as reasonably practicable.

For more specific information on any of the material contained in this article please contact Ganesh Krishnan on +61 (08) 8217 1395 or gkrishnan@normans.com.au or Thomas Tagirara on +61 (08) 8217 1337 or ttagirara@normans.com.au.

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