31 Jan 2013

An employer's duty to maintain a safe workplace includes conduct at work Christmas functions

by Saul Harben, Jessica Keogh

The employer's failure to immediately address the incident and its management meant it couldn't terminate the employee's employment when it had a valid reason to do so.

Employers who fail to promptly deal with unsafe behaviour by employees during work Christmas functions may find that there are consequences.

Fair Work Australia has recently ordered compensation to be awarded to an employee who was dismissed after accusations that the employee had engaged in serious misconduct by bullying a colleague and head-butting another colleague during a work Christmas party in 2010.

In Mr Zeb Dewson v Boom Logistics Ltd [2012] FWA 9027 Fair Work Australia found that the employer unfairly dismissed Mr Dewson through its "inept" handling of serious misconduct allegations and management's failure to allow natural justice in the disciplinary process.


Boom Logistics is a large crane logistics service provider, with operations on sites throughout Australia. Mr Dewson was employed by Boom Logistics in the position of Crane Operator, in the Queensland town of Moranbah.

In August 2011 Boom Logistics received a formal complaint from an employee alleging that Boom Logistics' employees had been engaging in severe breaches of occupational health and safety laws including, amongst other things, workplace harassment, physical and verbal assaults, destruction of personal property, widespread drug use and the concealment of workplace health and safety incidents. After receiving the complaint, Boom Logistics engaged an external consultant to investigate the allegations and provide a report on his findings.

The consultant found that Boom Logistics' Moranbah and Dysart operations comprised of toxic work environments which posed serious risk of injury to employees, in breach of Boom Logistics' responsibilities to provide a safe work environment for its employees. The report also included an investigation into allegations that Mr Dewson head-butted another employee during a drunken work Christmas party sponsored by the employer in 2010. Boom Logistics sought advice from the consultant on how to remedy the work environments on the Moranbah and Dysart sites. The consultant advised the employer to consider relocating or terminating the employment of several troublesome employees, including Mr Dewson.

Shortly after receiving the report, the employer received a complaint from an employee that Mr Dewson had recently assaulted him on two separate occasions. The employer arranged a meeting with Mr Dewson and his union delegate to discuss the allegations. At this meeting Boom Logistics terminated Mr Dewson's employment satisfied that Mr Dewson had assaulted the complainant and had established a pattern of misconduct through the recent incidents of assault together with the head-butting incident at the 2010 Christmas party.

Fair Work Australia's decision

Commissioner Ian Cambridge found that upon analysis of the facts surrounding the allegations of serious misconduct there was no factual basis to support a finding of serious misconduct in regards to the recent allegations of assault.

In reference to the festive season head-butting incident, Commissioner Cambridge found that Mr Dewson had committed serious misconduct during the work Christmas party of 2010. However, due to the employer's failure to deal with the incident at the time it could not later be relied upon to form part of the justification for Mr Dewson's dismissal. Commissioner Cambridge found that "misconduct that might ordinarily provide valid reason for the dismissal cannot be resurrected to provide a basis for dismissal."

Furthermore, Commissioner Cambridge went onto to criticise the employer's handling of the recent assault allegations, labelling the employer's process as "inept" and identifying deficiencies in the investigative process, the bias of management and the unreasonable refusal to allow Mr Dewson with a support person of his choosing.

What does this mean for employers?

During the festive season it is difficult for employers to predict all facets of employee behaviour at work sponsored Christmas events. However, under occupational health and safety laws employers have a legal responsibility to provide a safe work environment for all employees during work related activities, including the annual Christmas party. As such, it is pivotal that in the lead-up to Christmas employers ensure that effective strategies are in place to prevent unwanted incidents and to ensure the safety of employees at work endorsed Christmas functions.

This may include refreshing employees' awareness of any applicable workplace policies or codes of conduct. Any form of unsafe behaviour during work functions should not be tolerated by employers and should be dealt with immediately.

This case should act as a warning to all employers when managing incidents of employees breaching occupational health and safety laws. The failure by the employer to immediately address the incident and its management of the matter prevented it from terminating the employment of an employee when it had valid reason to do so. This example should highlight to employers the importance of promptness and procedural fairness, even if a clear breach of the occupational health and safety laws has occurred.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.