The Case

Keron v Westpac Banking Corporation (2022)

In March 2021, Mr Keron, a Senior Relationship Manager with the Westpac Banking Corporation (Westpac), 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.

It was also alleged that 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. The first female employee also made a formal complaint to the police. In relation to that complaint, Mr Keron was arrested and charged by police with indecent assault.

Westpac found the first allegation was substantiated and the second allegation was 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 hence they were able to dismiss Mr Keron for his conduct.

Mr Keron, having been employed with Westpac for 35 years, lodged an unfair dismissal claim with the Fair Work Commission (FWC).

The Verdict

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.

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 of 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:

• choosing a pub as a work social event location; and
• providing employees with free access to alcohol, without ensuring employees could get home safely.

The Lessons

Employees can be dismissed or disciplined for conduct that happens outside work hours if there is deemed to be a sufficient connection to the workplace.

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.

Remember, there are many legal risks associated with work social events, so a cautious and disciplined approach is required to reduce such risks.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.