Beware responsibility for out of work conduct

The Fair Work Commission has warned of higher standards expected from both employees and employers in relation to out of work events, criticising Westpac for hosting a networking event at a sports bar with unlimited alcohol, despite upholding its sacking of a manager who inappropriately touched a junior colleague. 

Background

Westpac dismissed a senior relationship manager after 35 years of service after an internal investigation found that he had inappropriately touched a female employee on the buttocks, and verbally abused another, after a networking event. 

The employees concerned had attended an all day compulsory workshop off-site, after which employees were encouraged to attend networking drinks at a nearby sports bar. Unlimited alcohol was available at the networking event, which was unsupervised. The networking event finished at about 7pm, although a small number of employees including the manager stayed on and continued drinking. 

The manager made an unfair dismissal claim, arguing that because the incidents happened hours after the networking event finished, and he had no ongoing working relationship with the women, the events were not related to his work and could not be relied on to dismiss him. He had no memory of the first incident and was intoxicated at the time. 

Decision 

The Fair Work Commission upheld the dismissal based on the groping incident, saying that it occurred during an extension of the work (networking) event. It also said the incident had a sufficient connection to work, given the potential impacts on Westpac’s reputation and operational matters (eg allocation of work). The second event was too remote, as it occurred hours later at a different location.

As to the groping incident, although the junior colleague was seen on CCTV footage to have been pursuing the manager to engage him in conversation, and physically touching his arm and back, this offered no defence. The FWC said he should have exercised “extreme caution” in circumstances where he knew the colleague was junior, married, and that they were both intoxicated. 

It went on to criticise Westpac for hosting the event at a sports bar, despite its commitment to diversity. It also questioned whether alcohol was “[n]ecessary or even an appropriate element of work related events”, noting Westpac’s employees had unsupervised and unrestricted access to alcohol for a two hour period, and no arrangements were made for employees to leave the venue or return home safely. 

Key takeaways

• The Commission has adopted a broad view of “work-related” conduct and while this gives employers broad scope to take action against offending employees, it means that employers can also be liable for the same conduct. 
• Employers should ensure they have policies in place setting out standards of expected behaviour, that employees receive regular training and reminders prior to events.
• Employers and employees should assume that conduct at work events and related social events will be covered by the employer’s policies.
• Employers should consider providing supervision and taking steps to formally conclude work events eg ensuring employees leave the venue, that drinks are no longer provided and that staff can get home safely.

How can we help?

We can review policies to ensure best practice and deliver training to staff, to ensure your business is protected.

We can provide advice and assistance in relation to any complaint or misconduct, including conducting investigations, as well as advising on termination process and unfair dismissal claims.