Should you be terminated for swearing at the boss, or kissing a colleague?  

July 2015      

When is going too far, really going too far? 

In the case of Keenan v Leighton Boral Amey NSW Pty Ltd [2015], the Fair Work Commission heard that Mr Keenan had attended a company function where alcohol was on a ‘serve yourself’ basis.  No attempt was made to limit alcohol to employees who had over imbibed. 

During the party, Mr Keenan's conduct included telling a director to "f*** off mate", and asking a senior female employee,  "What do you even do? No seriously. Who the f*** are you? What do you even do here?". 

He then turned his attention to a female manager. After asking her about her children, Mr Keenan then said words to the effect of "I want to ask for your number, but I don't want to be rejected". She did not respond to this or the three or four subsequent requests. 

The party then came to an official close and a large group of employees, including Mr Keenan, moved on to the public bar area upstairs, which had not been hired for the party. 

At this ‘after-party’ Mr Keenan's actions included: 

·          returning to the one female employee, and stroking her cheek (which was not encouraged or invited); 

·          asking another female employee "Why the f*** are you talking to Kevin?", and later telling her "I used to think you were a stuck up bitch, but Ryan says you are alright. If Ryan likes you then you must be ok". She was later found crying in the ladies' bathroom; 

·          suddenly grabbing another female employee's head and kissing her on the mouth. She walked away; he later told her "I'm going to go home and dream about you tonight"; and 

·          telling a fourth female employee that his "mission tonight is to find out what colour your knickers you have on". 

As a result of his actions, Mr Keenan was dismissed as a result of this night. Under section 387 of the Fair Work Act 2009 (Cth). 

What do you think the outcome would be?  Unfair dismissal or not? 

Vice President Hatcher ruled that Mr Keenan's conduct after the official function had come to an end could not be relied upon. He held that his conduct at the upstairs was properly characterised as private activity and therefore could not constitute a valid reason for dismissal. 

Neither telling a director to "f*** off", not repeatedly asking for a phone number, were held to be serious enough to be a valid reason for dismissal. 

Mr Keenan's question of Ms Stokes ‒ "who the f*** are you?" ‒ on the other hand was. Put, however, in the broader context of Mr Keenan's good record, his state of intoxication (which was considered to be a mitigating factor) and other relevant circumstances, the dismissal was unfair. 

Importantly, the manner in which alcohol was served at the party was considered to be an exacerbating factor. There was unlimited service of alcohol, employees were free to help themselves to bottled alcohol and the employer failed to place anyone with managerial authority in charge of supervising the conduct of the function. 

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FWC/2015/3156.html?stem=0&synonyms=0&query=Stephen%20Keenan 

Note:- in the case of Ewin v Vergara (No. 3)  [2013] FCA 1311

Justice Bromberg said "What makes a workplace animate are the people who work in it and the relations between them… “workplace” is not confined to the place of work of the participants but extends to a place at which the participants work or otherwise carry out functions in connection with being a workplace participant. [emphasis in the original]"

That meant the Court had to examine not just the interactions between Ms Ewin and Mr Vergara, but where they happened and why they were there.