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Bullying & HarassmentJuly 1, 2015
A team leader, who spent the night of his work Christmas party intimidating and sexually harassing his fellow colleagues, has been found to have been unfairly dismissed. This case is causing the Fair Work Commission to question whether companies can insist on compliance with their code of conduct at functions where they provide ‘unlimited service of free alcohol’ to employees.
The FWC heard that the team leader for the Leighton Boral Amey Joint Venture (LBAJV) consumed 13 drinks, including 2 beers before he arrived, and a vodka and coke at the after party. At the party he was accused of telling a company director to ‘’F- Off’’ when he attempted to join a conversation. He was also accused of asking a female colleague for her number while saying to another colleague “Who the f- are you? What do you even do here?”
When the work party ended, he accompanied some of his colleagues to the venue’s public bar where he once again spoke crudely to his females colleagues, describing one as a ‘bitch’ and kissing another on the mouth before telling her that he was going to go home and dream about her.
The employer decided to wait until the team leader returned to work in January before dismissing him for two counts of sexual harassment. Whilst defending the dismissal, LBAJV claimed there was a total of eight incidents which amounted to misconduct.
However, whilst the FWC agreed that the “factual basis” for all eight incidents could be established, they could only consider those occurring in the hours, and the room, within which the work function was booked. Employees were informed beforehand that the LBAJV’s code of conduct would apply at the function, however there is no evidence to suggest that those standards would apply outside of the boundaries of the workplace function.
It was then concluded that the time spent by the employees in the upstairs bar and out in the street after 10pm was “outside of the workplace and outside of working time”. Whilst the incident of kissing a fellow colleague was abundantly clear as sexual harassment, the incident did not occur in connection with the team leader’s employment and as such the employer did not have a viable reason for his dismissal.
This raises an interesting fact surrounding workplace code of conduct and where in fact, it applies. LBAJV had carried out due care in enforcing their code of conduct at the function but where ‘work time’ starts and end needs to be recognised.
If you are planning a function and need a better understanding of your requirements, or are faced with a similar situation and unsure of the correct approach, Employsure can help. Call us today on 1300 651 415.
Source: Workplace Express