“You’re always one drink away from ruining your professional life.” Josh Gordon and Will Speck, Dec 2016.
Every year workers come to me having been dismissed from employment for having “one too many” drinks at their office Christmas party. The reality is that it is often not the additional drink that caused their dismissal but rather the conduct that followed the drink that did. Conduct that in other circumstances may never have occurred.
The behaviours complained of by employers range from inappropriate use of language (swearing more than is acceptable in an office environment) to inappropriate dancing (relating to sexual gesticulation). In some cases, it includes unwanted sexual advances towards colleagues and peers that is perceived to be harassing in nature. The latter is the type of complaint that I have advised on the most.
This blog examines a 2008 case from the Australian Industrial Relations Commission relating to the dismissal of an employee who had sexual intercourse with a colleague after the Christmas party and lied to her employer about it later. In an interesting legal twist, it was not the sexual conduct that gave rise to the valid reason for the dismissal. It was the worker’s dishonesty when she was asked about it by her employer.
Streeter v Telstra Corporation Limited
In February 2007 Ms Streeter attended a combined work related Christmas and farewell party. The employer had paid $25.00 per staff member as a contribution to the evening. Several employees consumed alcohol, Ms Streeter included.
After the party, Ms Streeter went back to a hotel with some of her colleagues. While in the hotel room, Ms Streeter showered with one of her colleagues and had sexual intercourse with another. A fourth colleague was within earshot of these activities.
The fourth colleague complained to the employer about what she had been exposed to following the Christmas party. When she called the employer to report the conduct she was crying and hyperventilating. She was scheduled to work with Ms Streeter that day but because of her distress about the Christmas party she was not able to do so.
Telstra conducted an investigation into Ms Streeter’s conduct, including interviewing Ms Streeter about the night of the Christmas party. They asked whether she had had sexual intercourse with two different colleagues and her recollections about what had happened at the Christmas party at the hotel. Ms Streeter was unco-operative and dishonest with Telstra during the investigation. In response to questions asked of her, she denied activities she knew had occurred or stated that she had “no comment”. She also claimed a lack of memory with respect to certain activities.
Ms Streeter subsequently conceded that she had lied to Telstra during the investigation and was then dismissed her from employment.
Ms Streeter made a claim for an application for relief in respect of termination of employment to the Australian Industrial Relations Commission (the AIRC).
The AIRC was required to consider whether there was a valid reason for the dismissal and, if yes, whether the worker had been afforded procedural fairness in relation to the proposed dismissal. After an extensive legal process, the AIRC made the following comments:
- Ms Streeter’s dishonesty would have been of little relevance to Telstra if her activities had had no effect at her work and were not likely to have any effect at her work. However, it appeared her activities had caused difficulties at her work and were likely to cause difficulties at her work in the future.
- Ms Streeter’s dishonesty with Telstra during the investigation meant Telstra could not be confident Ms Streeter would be honest with it in the future. The relationship of trust and confidence between Telstra and Ms Streeter was, thereby, destroyed.
The AIRC then concluded:
“There was a valid reason for the termination of Ms Streeter’s employment by Telstra related to her conduct, being her dishonesty with Telstra during the investigation it conducted on 28 February 2007 and 14 March 2007 into her activities in the room at Hotel B on 24-25 February 2007.
We think it was reasonable for Telstra to conduct the investigation given it appeared her activities had caused difficulties at her work and were likely to cause difficulties at her work in the future.
In the circumstances, we also think the questions Telstra asked Ms Streeter were reasonable. We think Ms Streeter needed to be honest with Telstra during the investigation, notwithstanding the inherently personal nature of her activities, so that Telstra could determine and take appropriate action to deal with the difficulties.”
“We have decided the termination of Ms Streeter’s employment by Telstra was not harsh, unjust or unreasonable.”
Ms Streeter did not receive any remedy from the Commission.
Having considered this example and reflected on my experience in this area, I have developed three rules that all workers should keep in mind coming into the festive season:
- Refrain from drinking with abandon at work events;
- Refrain from having sexual intercourse with your colleagues at / after work events; and
- If you forget rules one and two and your employer conducts an investigation into your behaviour, don’t lie about your conduct. Turn to Turner Freeman Lawyers and ask for urgent legal assistance.
If you receive notification of your dismissal from employer, remember that applications for unfair dismissal remedies must be filed in the Fair Work Commission within 21 days of the dismissal taking effect.