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For many in management, upon returning to work in the New Year the first thing that awaits their attention is the need to consider disciplinary action for employees who let down the team as the year wound down for one reason or other.

Across the nation more sick days are taken in the week immediately prior to Christmas than at any other time of year.  Whether it be the failure to properly evidence a sick day, harassment or other misconduct at (or after) the work festive season function or simply failing to keep up with key performance indicators immediately prior to going on leave the principles of procedural fairness are the key to ensuring that fair decisions, which can withstand legal scrutiny, are made in the best interests of the organisation.

And so we provide the following pointers about things that everyone in management already knows, but judging by the number of employment disciplinary matters we are asked to advise on, could do with a seasonal reminder.

Classic Christmas Party Disaster

Last year the decision of Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 (The Keenan Case) was delivered by the Fair Work Commission.  The case involved behaviour by an employee that was - by any account - outrageous and resulted in the employee being dismissed.  However, in a surprise ruling the Fair Work Commission found the dismissal was unfair, and it presents as a good example of how important carefully following procedure is to ensuring that any decision is ultimately held to be fair.

Here is a list of the offending behaviour Mr Keenan engaged in at his Christmas party in December 2014:

  • Said “[BLEEP] off mate!” to one senior manager, and later told another to “[BLEEP] off”;
  • Said to a junior female colleague, “Who the [BLEEP] are you?  What do you even do here?”;
  • Caused a female colleague to cry by saying “I thought you were a little [BLEEP] but you know you’re okay and I like you.”
  • Made another colleague feel so uncomfortable that she left the function because he intrusively inquired into her personal circumstances and then said “I want to ask for your phone number, but I don’t want to be rejected”

After the function ended Mr Keenan joined a group of employees who decided to continue to socialise in another part of the Hotel, and then later went together in taxis to another venue.  Mr Keenan was ultimately refused entry to the second venue, however prior to that occurring he:

  • unexpectedly kissed an employee;
  • inappropriately touched another colleague on her chin,
  • made rude and abrasive comments to other colleagues; and   
  • Said to a female colleague “My mission tonight is to find out what colour knickers you have on”.

Somewhat surprisingly the Fair Work Commission (FWC) determined that Mr Keenan’s only misconduct was the bullying statement

“Who the [BLEEP] are you?  What do you even do here?”

and that none of the other conduct formed a valid reason for dismissal.  The Commission also noted that the precise words that it was alleged Mr Keenan spoke to his colleagues were not clearly put to him with the result that he had not had a sufficient opportunity to respond.

The Commission felt that had Mr Keenan been afforded the opportunity to properly respond to the allegations he could have raised the fact that he had received no prior warnings and had been of otherwise good character.  In addition, Mr Keenan would also probably have raised the fact (which he did raise at the hearing before the Commission) that there had been other similar misconduct by employees during the year which had not resulted in dismissal.  In the Commission’s opinion Mr Keenan had therefore, in all the circumstances, been unfairly dismissed.

Tips for Decision Makers

The below points are by no means exhaustive, but reflect common themes in cases we deal with:

  • No matter how outrageous behaviour may seem, it is always important to consider all surrounding circumstance and discipline employees consistently.
  • Employees are entitled to know what is at stake. Procedural fairness means “no surprises”. It demands that employees are always given clear notice about whether a disciplinary process may end with dismissal and not be denied a support person, right from the start.
  • Allegations – whether they simply be a slightly disappointing performance toward the end of the year or serious misconduct must be clearly outlined in detail.
  • A reasonable opportunity to respond to allegations must be given to employees and this may require time off to prepare a written response in some cases.
  • If an employee misbehaves, seek early legal advice about how to conduct an effective - and if necessary independent – investigation that will ensure your disciplinary process and any resultant decision is sound and legally defensible.
  • Employee’s responses to allegations and issues must be carefully documented and considered. While it is no always necessary or appropriate to give detailed reasons for a decision to terminate following dismissal, the basis for the decision should be articulated clearly and in writing.  Where there is confidential detail that is important in the decision making process, it must be kept on file securely for later reference, and be clearly marked as confidential.
  • Just because the process requires some care and rigour, does not mean that managers should shy away from decisions to discipline or terminate employees in appropriate cases. Focus on getting the procedure right, but don’t get paralysed by the fear of making a decision.
  • Always consider and document consideration given to options other than termination, including performance management, re-deployment, a change in reporting lines.

If you have questions or would like a confidential, obligation free discussion about your employment law needs, contact any of the employment team at HHG Legal Group - Murray Thornhill, director,  Marcus Hodge, Special Counsel,  Nicole Young, Associate, Greg Rogers, Lawyer.