How did he get away with this?

Published on: 19 Jul 2015

 

Picture the scene. It’s the office Christmas party and you’ve had a couple of drinks. You’re relaxed and are having a good time.

So far so good but what would you do next?

Would you:

a) Carry on in a chilled relaxed way to enjoy yourself and celebrate the festive period, or

b) Drink too much, tell one of the directors of the company and a senior project manager to (rude word removed so as not to offend any of our readers) off, make a female colleague cry by telling her that she was a stuck up (another rude word deleted), keep on pestering another female colleague to go horse riding together, hold another female colleague’s face in your hands and kiss her on the mouth and then finish the evening off by asking another female colleague what colour underwear she was wearing.

Whilst most normal people would opt for option a), Stephen Keenan, a team leader at Leighton Boral and Amey Joint Venture in Australia chose option b).

Mr Keenhan had reportedly had about 10 beers and one vodka and was by all accounts extremely drunk.

Telling a director to “go forth and multiply” as well as insulting female colleagues and kissing them against their wishes isn’t the most impressive way to act during a Christmas party and it was probably no surprise when he was called into the office on his return to work after the Christmas break to be told that he would be dismissed for sexual harassment.

However, what will probably come as a bit of a surprise though was that he made a claim for unfair dismissal at the Australian Fair Work Commission (FWC) and surprisingly enough he actually won his case.

Yes, despite insulting a number of his colleagues and trying to kiss a female colleague against her wishes he won his case for unfair dismissal.

Adam Hatcher, a vice-president at the FWC found that none of the incidents were valid grounds for dismissal and concluded that Mr Keenan had been unfairly dismissed.

The FWC tribunal found that there was no evidence the board member took offence or remembered the incident. They also found that proposing to meet up with a colleague was not sexual harassment and the kiss occurred in the upstairs bar after the function had officially ended. As a result it was not connected to Mr Keenan’s employment.

Mr Hatcher also said that “In my view, it is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol at the function,”

In other words, the employee couldn’t be held responsible as the employer had partly contributed to the actions by serving unlimited free drinks.

Now whilst Mr Keenhan is no doubt pretty happy about the decision (and in fact will probably head out for a few celebratory drinks…), the decision of the tribunal is causing a fair amount of concern for some people in Australia. After all, the fact that an employee’s unacceptable behaviour was excused due to free alcohol being supplied by the employer has led some to worry that to avoid such a situation in the future, Australian firms may stop providing free alcohol at their Christmas parties.

The ExP Group