Christmas: HR Breakfast Club - December Summary
This month, we discussed 6 scenarios that have happened during the Christmas period, and the lessons that can be learnt from them.
This month at HR Breakfast Club, we had a Christmas themed discussion around some of the notable Employment Law cases that have occurred recently at this time of year.
One of the most notable was that of Keenan v Leighton Boral Amey NSW Pty Ltd  FWC 3156.
A work Christmas function took place in a hotel where employees had unlimited access to alcohol.
The employee consumed 10 beers at the function. During the function, he told a member of the board to “f*#! off” and asked a female colleague “who the f*#! are you?” The employee also tried to obtain a female colleague’s phone number.
After the function ended at 10pm, a group of employees moved to a public bar where they purchased their own drinks. At this stage of the evening, the employees touched a female colleague’s chin, said to another “I used to think you were a stuck up b*+#! ”, kissed a third on the mouth without warning and told her “I’m going to go home and dream about you tonight”.
This behaviour continued while en route to another venue with colleagues, where he told a fourth female colleague that it was his mission that night to find out the colour of her undergarments.
Subsequent to the employee’s behaviour that night, a number of complaints were made, there was an investigation and the employee was dismissed. He then commenced a claim for unfair dismissal.
Lessons for employers:
- Make it clear when the Christmas function has finished. The fact the Commission held that the employee’s behaviour after the work function has ended was not connected to his employment means this distinction must be clear. Consider, for example, clearing the employees out of a particular function room, ensuring they all know that after a particular time the work function has ended and they are on their own time.
- Make specific, not general, allegations of misconduct. In this decision the employer did not articulate specific allegation of misconduct; only general allegations were made. This was to the employer’s detriment – the Commission found this constituted a lack of procedural fairness.
- Consider having a type of ‘alcohol manager’ at the function who has the power to cut off intoxicated employees. Vice President Hatcher made an important observation in considering the role of alcohol at the function. He considered the employee’s ability to continue drinking “notwithstanding his visible intoxication” was “ultimately a result of the fact that [the employer] did not place anyone with managerial authority in charge of the conduct of the function, but essentially let it run itself”. Consequently, Vice President Hatcher held that the role of alcohol at the function weighed “at least in a limited way, in favour of a conclusion that the dismissal was harsh”. The take-home message here is that it is advantageous for an employer to have a “managerial authority” present at the function whose role includes monitoring for intoxication and having the power to cut intoxicated employees’ supply to alcohol.
Q: Who still gets annual leave loading? Why does it still exist?
A: Today, annual leave loading still applies to a number of modern awards and workplace agreements. Employees across a wide range of industries benefit from the standard 17.5% prescription, although this percentage can vary (e.g. Clerks (17.5%), banking sector (17.5%), fast food industry (17.5%), hair and beauty industry (17.5%), architects (17.5%), aged care (17.5%), building/construction (17.5%), teachers (17.5%), ACT public sector (17.5%) Australian Government Industry Award (no annual leave loading, paid at the employee’s ordinary hourly rate).)
The key arguments in favour of annual leave loading are firstly that a holiday bonus is “necessary in order to allow the employee to meet the additional expenses involved in travelling to a holiday location and enjoying a break from ordinary lifestyle.” Secondly, it is argued that a loading “would compensate for the lack of earnings above the award rate which many employees would regularly receive, such as overtime payments, shift allowances and other disability payments” and other opportunities to earn additional income. Logically, the annual leave loading attempts to address the problem of people trying to fund a (potentially family) holiday on wages substantially lower than usual or at a minimum wage level.
This answer is, of course, general commentary only. It is not legal advice. Readers must contact us and receive our specific advice on the particular situation that concerns them before acting or refraining from acting.
If you have a question about behaviour at your office Christmas party, or would like to attend HR Breakfast Club, please contact us.