December is the season of office Christmas parties. Parties are a good opportunity to get to know your colleagues outside the workplace and they can be fun. However people should be aware that the law considers work functions to be ‘in the course of employment. That means that you are accountable for your conduct at such events. This also applies as employers responsibilities under Work, Health and Safety (WHS) laws also exist.
Accountability for behaviour
Offensive behaviour, sexual harassment and other misconduct can be treated as a workplace issue by your employer. Being intoxicated is not an excuse for such behaviour.
Factors that are considered when weighing up whether the dismissal was unfair include whether an employee has a good employment record, the incident leading to a dismissal is one-off or if an employee is genuinely remorseful for the event. There may be other factors which are mitigating. This may include personal matters.
In the recent case of Public Service Association and Professional Officers’ Association amalgamated Union of New South Wales (on behalf of Andrew McCaskill) and Department of Attorney General and Justice  NSWIRComm 1009 (17 April 2014); an employer’s decision to dismiss an employee over his conduct at a work function was deemed harsh. In that case Commissioner Tabba of the NSW Industrial Relations Commission.
As always prevention is better than cure. People should take care when consuming alcohol at work functions and be mindful at work functions about how they behave. Misbehaviour will not necessarily mean dismissal however. Section 385 of the Fair Work Act states that a dismissal is unfair if it is harsh, unjust or unreasonable. Depending on the action and other circumstances, an employer’s decision to dismiss an employee may be unfair. We advise people to take care during work functions.
If however you do get dismissed for your behaviour at a work function you can contact our employment lawyers on 13 43 63 or via our online enquiry form for assistance.