BlandsLaw - Blog posts from disciplinary action
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Contrary to popular belief, an employee who engages in obviously drunken and inappropriate behaviour may still be able to successfully challenge their dismissal if it is not handled appropriately.

A recent unfair dismissal case is a salient reminder to employers to ensure that they manage employees consistently and be vigilant where particular risk factors are present (eg alcohol at work functions).

Facts of the case

In Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 a work Christmas party went awry when a drunken employee began repeatedly swearing, making inappropriate comments to other employees and then sexually harassing several female employees at a function immediately following the Christmas party.

Multiple comments were made by other employees after the Christmas party and the employer commenced an investigation. The employer met with the employee initially informally and then formally to put the allegations to him. The employee was later dismissed on the grounds that two allegations of sexual harassment had been made out.

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The recent federal court decision in CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267 held that a warning letter issued for an employee’s unauthorised absence did not amount to adverse action. This case is important as it demonstrates that clearly communicated workplace policies, and consequences for breach, may mean the difference between allowable disciplinary action and unlawful adverse action.

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