The Case
In March 2021, Mr Keron, a Senior Relationship Manager with Westpac Bank, attended a Westpac-arranged professional development workshop.
After the workshop, Mr Keron and his work colleagues went to a Westpac-organised social event at a nearby pub. Each employee wore a wristband that enabled them to obtain free access to alcohol for a period of time.
After this, Mr Keron and a small group of employees continued on, consuming alcohol at their own expense, and then went to the Crown Casino. During this time, it was alleged that:
- Mr Keron touched the buttocks of a female employee.
- Mr Keron used offensive language with another female employee, because she told staff at the Casino that Mr Keron was intoxicated.
Westpac investigated the two incidents, which included interviewing witnesses and examining CCTV footage of the incidents from security cameras. The first female employee also made a formal complaint to the police, and Mr Keron was subsequently arrested and charged by police with indecent assault in relation to the first allegation.
The alleged second incident followed an unsuccessful attempt by Mr Keron to enter a casino later in the night when he was refused entry. The second female employee had urged the security guards not to let Mr Keron in and he verbally abused her using offensive language.
Westpac found the first allegation substantiated and the second allegation partially substantiated. After providing Mr Keron with procedural fairness, Westpac found Mr Keron had breached its policies and summarily dismissed him. Westpac argued the two incidents occurred at work-related events and therefore they were able to dismiss Mr Keron for misconduct.
Mr Keron, having been employed with Westpac for 35 years, lodged an unfair dismissal claim with the Fair Work Commission (FWC).
The Decision
The FWC found that Mr Keron’s conduct at the pub and Casino “occurred on the border between work-related event and private activities”. As such, the FWC had to decide if the two incidents had sufficient connection with Mr Keron’s employment to justify his dismissal. It also found that the dismissal was not harsh, unjust or unreasonable, noting that the bar for consent in relation to physical and sexual interactions had been raised, even more so in work-related situations.
After hearing the matter, the FWC found:
- the social connection between Mr Keron and the female employee whom he was alleged to have touched had only occurred as a result of the Westpac-organised pub event;
- Mr Keron’s conduct in touching the female employee’s buttocks at the Westpac-organised pub event had a sufficient connection to Mr Keron’s employment and was a valid reason for dismissal;
- the second incident at the Casino, which occurred 4 hours after the Westpac pub event, which was more than a kilometre away and was organised by the employees in a private capacity, was not sufficiently connected to Mr Keron’s employment, therefore, the FWC held that was not a valid reason for Mr Keron’s dismissal; and
- Mr Keron’s conduct in the first incident was a sufficient reason for dismissal, given Westpac had followed a procedurally fair process.
The FWC was critical of Westpac for:
- choosing a pub as a work social event location; and
- providing employees with free access to alcohol, without ensuring employees could get home safely.
Case details: Keron v Westpac Banking Corporation (2022)
The Lessons
The decision shows that networking sessions and other social occasions that follow on from training sessions or related events can result in employees being dismissed or disciplined for conduct that happens outside work hours if there is deemed to be a sufficient connection to the workplace.
It also shows that employers have an obligation to take their polices (and their stated values) into account when selecting networking activities and venues. Alcohol and employees at work events rarely mix well, unless consumption of alcohol is limited, intake monitored, and provision made for employees to get home safely.
There are many legal risks associated with work social events, so a cautious and disciplined approach is required to reduce such risks. Employers should consider if alcohol is appropriate in such social functions and always have senior members of staff on hand to ensure the safety of staff if alcohol is served.
Wise Workplace are industry leaders in investigating and managing complaints, concerns and allegations of workplace misconduct. For more information about how Wise Workplace can support your organisation, reach out to our friendly team on 1300 850 685 or [email protected].