Christmas is Coming, and so are the Lawsuits

Christmas is Coming, and so are the Lawsuits

As Christmas time comes around again, the Fair Work Commission has made a timely ruling that an employer did not unfairly dismiss a storeperson for throwing a full beer glass over the heads of colleagues at an official work Christmas party in 2017.

Commissioner Gregory found that while employers organising Christmas parties must take reasonable steps to maintain standards of behaviour and safety, “any employee attending has a responsibility to act within reasonable bounds”.

The issue arises as to whether the behaviour at a work Christmas party is considered to be conduct at work or conduct outside of work. An employee cannot be punished for conduct outside work unless it has a connection to employment.

The employee had drunk kava at his house on November 25, before walking the short distance to the work function in a private room at a local hotel. The storeperson became increasingly agitated once bar workers refused to serve him.

Despite being counselled by three section leaders to calm down or leave the premises, the storeperson from a distance of about five metres threw his beer glass in the direction of a security guard, spraying seated workmates when it smashed against a lamp.

After an investigation that involved viewing CCTV footage and interviewing those present, the centre’s logistics manager, on 1 December, dismissed the storeperson for serious misconduct and breaching ALDI’s code of conduct.

The storeperson variously argued that he could not recall the incident, that he had been provoked by bar workers calling him a “coconut”, that the absence of company management meant it was not an official work function and that his dismissal was out of proportion to the alleged misconduct.

The storeperson also relied upon the decision in Keenan, in which the Fair Work Commission reinstated an employee after finding that the employer’s “unlimited service of free alcohol” at a Christmas function meant that strict compliance with conduct standards was not required.

In Keenan, an employee had left the work function and gathered elsewhere with co-workers when an incident happened. VP Hatcher said:

“[101] I do not consider that conduct which occurred at the upstairs bar can be said to be in connection with Mr Keenan’s employment. The social interaction which occurred there was not in any sense organised, authorised, proposed or induced by (the employer). Those who gathered there did so entirely of their own volition. It was in a public place. There was nothing in (the employer’s) Code of Conduct or relevant policies which suggested that they had any application to social activities of this nature… Mr Keenan’s conduct in the upstairs bar was merely incidental to his employment.”

ALDI put forward the unchallenged evidence of the storeperson’s misconduct, its efforts to ensure the maintenance of behavioural standards—as evidenced by the presence of a security guard—and the scope of its conduct code “not [being] limited to the four corners of [its] premises”.

The Commission distinguished the case from Keenan because of restrictions on the service of alcohol which had, in fact, proved to be the original source of the storeperson’s grievances, ALDI said.

The commissioner said that the circumstances of the two cases differed, that:

“while it appears that ALDI did not make a specific effort to speak with the employees in advance of the function to confirm what standards of behaviour were expected, the evidence indicates that a number of steps were taken to put in place arrangements designed to ensure the behaviour of those attending did not get out of hand”.

The Commissioner was satisfied that the storeperson’s conduct was more serious than in the Keenan case, and highlighted that while there was no physical injury, one could have easily resulted. The Commission said that the company had a valid reason to dismiss the storeperson.
While the Keenan case held that intoxication was a mitigating factor, Commissioner Gregory said it did not enable the storeperson to avoid responsibility for his actions.

“His own evidence indicated he had been drinking prior to attending the function, and he continued to drink heavily after arriving… He also acknowledged that he was prone to behaving erratically in such circumstances… I am satisfied, in response, that he should accept much of the responsibility for placing himself in these circumstances.”

The Commissioner agreed, also, that the availability of alcohol differed from that in the Keenan case.

“This was not a situation in which it was a case of ‘help yourself’ in regard to obtaining drinks,” the commissioner observed, pointing out the responsible service of alcohol measures in place and ALDI’s limited budget for the evening.


Be definitive with your employees about what constitutes the behaviour expected at work functions. State the start and finish times, the location or venue boundaries and reiterate that employees are still effectively at work while at the function.

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