Work Christmas parties – When fun leads to dismissal

Work Christmas parties are meant to be all about fun, having a few drinks, and blowing off a little steam with your colleagues. And naturally, some degree of cheeky behaviour is often expected. But sometimes that behaviour can cross into the realm of serious misconduct.

In this article, we share some shocking examples of work Christmas parties at Australian workplaces. Some of these ended with employees being dismissed for serious misconduct. While others, at some of Australia’s biggest companies, were simply victimless affairs where shameless hedonism took centre stage.

But before we get into those, it’s first important to remember…

Not everyone gets into the work Christmas party mood

With alcohol flowing freely and the peer-pressured expectation to have fun, for some employees, work Christmas parties aren’t fun at all.

Despite fears that you may not be seen as a “team player,” it’s completely OK not to attend a work Christmas party. And if you do attend, you don’t have to feel forced to partake in other people’s idea of fun.

Some workers may fear that they may face disciplinary action or even be dismissed for failing to attend a work Christmas party. And this is exactly what happened to a French worker, who recently took his employer to court and won.

In France, it’s now OK to be a grinch at work Christmas parties

A recent decision by France’s highest court has given the nation’s workers the “right to be boring” at work Christmas parties and other social functions. Last month, the Court of Cassation in Paris ruled that a director’s dismissal for not partaking in work drinks or team building activities was unfair.

The director, Mr T, was dismissed by Cubik Partners in 2015 for “professional inadequacy.” The company also claimed that he was a bad listener and difficult to work with. But Mr T told the court that it was his right to be “critical” of Cubik Partners. Also, not to comply with its company policy, which he felt was “based on incitement to partake in various excesses.”

And these excesses were truly shocking. The court was told of how Cubik Partners staff regularly engaged in “humiliating and intrusive practices,” amidst a culture of “excessive alcoholism.” These practices included “simulating sexual acts”, colleagues sharing a bed during seminars, and crude nicknames.

Mr T argued that it was his “right to be boring” and to not partake in such activities. And the court agreed. It ruled that Cubik Partners didn’t have the right to make employees “forcibly participate” in alcohol-fuelled social events. It also ruled that Mr T was entitled to use his freedom of expression to refuse partaking in after-work drinks.

The court ordered Cubik Partners to pay Mr T roughly AU$4,500. Mr T is hoping for an extra AU$750,000 in damages when the court holds its follow-up hearing.

Some Australian companies are notorious for their work Christmas parties

For those workers who do enjoy their work Christmas parties, things can sometimes get a little out of hand. Stories abound about some of Australia’s biggest corporates and the wild behaviour that’s on display at their work Christmas parties.

Shocking work Christmas party: Employee jumps into pool naked

One such example, recently reported by the Australian Financial Review, is Westfield. At its work Christmas party a decade ago, a member of the marketing team decided to strip down and jump naked into a swimming pool. It’s not known if this daring staff member faced a disciplinary action or perhaps even dismissal for serious misconduct, but there’s a good chance he did.

Optus hires male stripper for work Christmas party

Another shocking example of a wild work Christmas party is that of Optus. While this party didn’t end with anyone getting dismissed for serious misconduct, it did cause a stir in the media.

In 2018, the telco giant held a very raunchy party at Sydney’s The Star casino. The highlight of the party was a male stripper, who disrobed until he was wearing nothing but a golden tassel covering his genitals.

The stripper twirled hula hoops on stage in front of hundreds of Optus employees. He also sat on the lap of one female staff member, before pouring wine all over his body. When video of the steamy party was leaked to the public, Optus was forced to go into damage control.

“This particular performance does not reflect the broader values of the company,” an Optus spokeswoman said.

The 2022 Optus work Christmas party, however, is set to be a much more sober affair. That’s of course because of the disastrous hacking scandal that engulfed the company earlier this year.

In September, the personal details of 11 million Optus customers were leaked in a data breach orchestrated by a mysterious hacker. The company’s management therefore decided that holding a work Christmas party as wild as previous years would be a “bad look.”

A spokesperson for the company said that this year Optus “will have a small scale get together to thank our people for their hard work and customer focus.”

Can you be dismissed for misbehaving at your work Christmas party?

As those of Westfield and Optus clearly show, work Christmas parties can very easily get out of hand. Particularly when copious amounts of booze are involved. So the question many workers ask is: is a work Christmas party still considered work? That is, can you be dismissed for your behaviour at a work Christmas Party?

The answer is yes, it is possible to be fairly dismissed if you engage in serious misconduct at a work Christmas party. Or if your conduct is less serious, to face disciplinary action. That’s because even if your party is held outside of normal work hours and off-site, legally it’s still considered part of your workplace.

Let’s look at an unfair dismissal case where an employee was dismissed for serious misconduct at their work Christmas party.

Aldi employee who threw a glass at work Christmas party dismissed for serious misconduct  

In the case Sione Vai v ALDI Stores 2018, a warehouse operator for Aldi was dismissed for serious misconduct. Sione Vai had worked at Aldi’s Melbourne distribution centre since 2013. In November 2017, the company held a work Christmas party for the staff of the centre in a private room at a hotel.

Prior to the work Christmas party, Mr Vai had been drinking kava – a traditional alcoholic beverage of the Pacific Islands. Later in the night at the work Christmas party, Mr Vai became more intoxicated to the point where the staff at the hotel decided to refuse him drink service.

Mr Vai soon became agitated at the refusal. Seeing that he was becoming increasingly “boisterous,” several of Mr Vai’s colleagues attempted to calm him down. But soon after, Mr Vai launched a full glass of beer in the direction of the hotel’s security staff. The glass, which flew over the heads of his colleagues, smashed into a wall.

Aldi dismisses Mr Vai for serious misconduct

A workplace investigation was soon conducted by Aldi, which included interviews with employees who witnessed the incident and a review of CCTV footage. And a week after the work Christmas Party, Mr Vai was dismissed for serious misconduct.

Aldi told him that “per company policy, provocation is not accepted as an excuse for physical violence.” Mr Vai subsequently made an unfair dismissal claim with the Fair Work Commission.

Mr Vai’s unfair dismissal case is heard by the Fair Work Commission

At his Fair Work Commission hearing, Mr Vai argued that his dismissal for serious misconduct was unfair as he didn’t have any memory of the incident. He also said that bar staff had made racial slurs against him and that the work Christmas party wasn’t an official work function. This was because, in his view, there were no managers from Aldi at the party.

Mr Vai also argued that:

• All Aldi workers at the work Christmas party weren’t in uniform.
• Aldi was responsible for his serious misconduct because it had had proffered alcohol to employees. That is, without providing directions about the standards of behaviour that would be considered appropriate.
• Aldi didn’t show how he had beached his employment contract. Mr Vai’s contention was that there was no evidence of any serious damage caused to the employee-employer relationship. Nor was there any evidence of damage to Aldi’s interests.

The Fair Work Commission rules on the unfair dismissal case

When considering the incident, the Fair Work Commission found that:

• The serious misconduct took place at an event organised by Aldi management.
• Aldi managers and an Aldi appointed security guard were at the work Christmas party to ensure employees complied with appropriate standards of behaviour.
• Several Aldi managers had had a word with Mr Vai about his behaviour on the night.
• Responsible service of alcohol measures had been put in place by Aldi.

Due to these factors, the Fair Work Commission found that the work Christmas party was under the legitimate purview of Aldi. It also found that Aldi had undertaken reasonable measures to ensure the good behaviour of party attendees.

The Fair Work Commission stated that employers have a responsibility to ensure a standard of behaviour for work Christmas parties. But also, that it’s the responsibility of attendees to act in a reasonable manner, which Mr Vai was found to have not.

The Fair Work Commission therefore ultimately ruled that Mr Vai had not been unfairly dismissed.

Have you been unfairly dismissed?

Whether you have been unfairly dismissed because of your alleged behaviour at a work function or otherwise, A Whole New Approach can help. We can provide the expert advice you need to make an unfair dismissal claim with the Fair Work Commission.

Over 16,000 Australian workers have chosen us to help them make an unfair dismissal claim in the last two decades. That’s because we’re the country’s leading workplace mediators, who understand exactly what you need to do to make your claim a success.

We offer a no win, no fee service and your first consultation with us is completely free. Call us today on 1300 766 700 for a confidential discussion.