Law Grad in Pink is a blog written by a law graduate in Adelaide for law graduates everywhere.

Sunday 27 December 2015

Boxing Day sales and restrictive trading – The law behind whether or not you can sales shop on the 26 December 2015

Did you go Boxing Day sales shopping on 26 December or did you have to wait until 27 December? Growing up in Adelaide, I found it very frustrating that the Boxing Day sales started on 26 December in other states, but Adelaide had to wait until the 27 December because of restrictive retail trading hours. South Australia, Western Australia and Queensland have traditionally had more restrictions on retail trade than New South Wales, Victoria and Tasmania. In fact, Tasmania has the most simple and deregulated retail trading system out of all the states. In this blog post I look at the state legislation, including restrictive trading legislation, behind Boxing Day sales.

Public holidays and restrictive trading laws are state based
In the division of powers between Commonwealth and state governments, state governments have the residual power to legislate for public holidays. State governments also have the power to regulate retail trading hours. Some public holidays are known as “national public holidays”, as each state has legislated for those days to be public holidays. A list of national public holidays can be found in s.115(1) of the Fair Work Act 2009. State specific public holidays are located in state statute. Public holidays are fantastic for those who work full time, as the Fair Work Act 2009 gives certain employees the right to be paid their base rate of pay on the public holiday (s.116) and an entitlement to be absent from work for the public holiday, though an employer can require an employee to work if the request is reasonable (s.114).

Boxing Day is a national public holiday, as each state has legislated to make 26 December a public holiday:
1. New South Wales - s.4(k) of the Public Holidays Act 2010 (NSW);
2. Victoria – s.6 of the Public Holidays Act 1993 (Vic);
3. South Australia – s.3(2) Holidays Act 2010 (SA);
4. Western Australia – s.5 and Second Schedule Public and Bank Holidays Act 1972 (WA);
5. Queensland – s.2 and Schedule Holidays Act 1983 (Qld); and
6. Tasmania – s.4 Statutory Holidays Act 2000 (Tas).

Whether retailers can trade on a public holiday is determined by restrictive trading laws on a state by state basis.

Restrictive trading on Boxing Day by state:

New South Wales
Restrictive trading days in NSW are Good Friday, Easter Sunday, Anzac Day (but only before 1pm), Christmas Day and Boxing Day (s.3 Retail Trading Act 2008 (NSW) (NSW RT Act). All shops predominantly selling retail goods are required to be closed on the restrictive trading days unless an exemption in Part 3 of the NSW RT Act applies (s.4 NSW RT Act). The general exemptions from trading on a restrictive trading day including exempt shops such as book shops, chemists, and florists (s.7 and Schedule 1); small shops where not more than two people are in the shop, one is the owner of the business, and neither of the persons in the shop are employees (s.8); and premises solely selling liquor or meals that have a hotel or small bar licence (s.9).

Significant changes were made to the NSW RT Act in 2015 by the Retail Trading Amendment Act 2015 (NSW)(Amendment Act). Schedule 1 of the Amendment Act inserted s.8A, an exemption to restrictive trading on Boxing Day only:

8A Shop not required to be closed on Boxing Day if staff freely elect to work
(1) A shop is not required to be kept closed on Boxing Day if the shop is staffed only by persons who have freely elected to work on that day.
(2) This section has effect despite any other provision of this Act and any other Act or law.

“Freely elected to work” is defined in s.3A in the negative. A person has not made a free election if they were coerced, harassed, threatened or intimidated or because the person is merely rostered or required by an Award or Enterprise Agreement to work on that day.

Prior to the introduction of s.8A, not all shops in NSW were able to open on Boxing Day. Now any retail shop may open on Boxing Day, as long as the staff have “freely elected to work on that day”.

In 2015, Boxing Day sales throughout NSW started on 26 December.

Victoria
Victorian retailers have been able to trade on Boxing Day for years, as under the Shop Trading Reform Act 1996 (Vic) shops to which the Act applies must remain closed during “ordinary shop closing times” (s.5(1)), and Boxing Day is not an ordinary shop closing time. Retail shops in Victoria are only required to be closed on Good Friday, Christmas Day and until 1pm on ANZAC Day (see definition of “ordinary shop closing times” in s.3). Not all shops are prohibited from trading on these days. Exempt shops in s.4 include chemists, petrol stations, and restaurants.

In 2015, Boxing Day sales throughout Victoria started on 26 December.

South Australia
South Australia retains restrictive trading laws on 26 December in non-CBD locations. Rundle Mall (CBD) is the only retail precinct permitted to be open on Boxing Day, and even then is only permitted to open from 11am-5pm which is a very limited 6 hour trading period compared to other states. Regional shopping centres cannot commence Boxing Day sales until 27 December. While small retail shops have no restrictions on trading hours (s.12C), general retail shops are restricted in their trading hours.

Shops outside the CBD district must be closed on 1 January, Easter Sunday, Christmas Day and Boxing Day (s.13 Shop Trading Hours Act 1977 (SA)), unless the Minister has granted an exemption (s.5). Anyone in doubt over the high levels of retail trading regulation in South Australia, should have a look at s.13 of the Shop Trading Hours Act 1977 which details the restricted hours retail shops can open throughout the year.

On an aside, South Australia has two part day public holidays on Christmas Eve and New Year’s Eve from 7pm to midnight (s.3B Holidays Act 2010), meaning that retail employers have to pay applicable public holiday penalty rates to employees for these periods.

Boxing Day sales in the Adelaide CBD commenced on 26 December 2015. Sales commenced in shopping precincts outside the CBD on 27 December 2015.

Western Australia
Western Australia is another highly regulated jurisdiction for retail trading. While the legislation remains restrictive, the Minister has made a number of orders enabling retail trade for general retail shops on most public holidays.

The Retail Trading Hours Act 1987 (WA) categorises shops into “general retail shops”, “small retail shops”, “special retail shops” and “filling stations” (s.10(1)). Large retailers like Myer and David Jones who engage in Boxing Day sales fall within the category of “general retail shops” (s.10(2)). General retail shops must be closed on public holidays (s.12(3)(d)) unless an order has been made by the Minister (of Commerce) to vary trading hours (s.12E). The Minister cannot authorise general retail shops to be open on ANZAC Day, Christmas Day or Good Friday (s.12E(3A)). The Minister has authorised trading on most public holidays aside from those specified in s.12E(3A). The Minister for Commerce authorised retail trading on Boxing Day from 8am to 6pm, as well as the Boxing Day public holiday on 28 December from 8am to 6pm.

Restaurants, cafes and take away food shops are not regulated by the Retail Trading Hours Act 1987.
Western Australian legislation is “special” in that it often splits the state into two by dividing the state into north of the 26th parallel and south of the 26th parallel. The Retail Trading Hours Act 1987 (WA) only applies to locations south of the 26th parallel, which includes Perth where most of the retail trading in Western Australia occurs.

The Public and Bank Holidays Act 1972 (WA) gives the Minister the power to proclaim a half-holiday, such as those in South Australia – to my knowledge this has not occured.

In 2015, Boxing Day sales in Western Australia commenced on 26 December.

Queensland
The Trading (Allowable Hours) Act 1990 (Qld) categorises retail shops into “exempt shops”, “independent retail shops” and “non-exempt shops” (see ss.4 to 6). “Exempt shops” include antique shops, arts galleries and ice cream parlours (s.5). The definition of “independent retail shop” in s.6 is complex, but the definition excludes shops engaging over 20 persons at any one time. “Independent retail shops” have unrestricted trading hours except on Christmas Day, so can open on Boxing Day. Most large retail shops such as Myer and David Jones that participate in Boxing Day sales exceed 20 employees and will be “non-exempt shops”.

The trading hours of non-exempt shops are also regulated by orders made by the Queensland Industrial Relations Commission (QIRC). The Commission makes amendments to this Order on an ad hoc basis to regulate trading hours of non-exempt shops. Currently, non-exempt shops are required to close on Good Friday, Easter Sunday (South East Queensland area only), 25 April, Labour Day and Christmas Day.

In 2015, Boxing Day sales in Queensland commenced on 26 December.

Tasmania
The Tasmanian retail sector is relatively unregulated (probably because of the state’s small size). The Shop Trading Hours Act 1984 (Tas) only applies to retail businesses with 250 or more employees (includes all employees full time or otherwise) (s.4). Section 5 of the Shop Trading Hours Act 1984 (Tas), prohibits retail shops which fall in the definition of s.4 from opening on Christmas Day and Good Friday. Retail shops are not exempt from trading on Boxing Day.

In 2015, Boxing Day sales in Tasmania commenced on 26 December.

Conclusion
While most retail shops were able to open across Australia on 26 December in 2015, the reason retail shops were able to open in many jurisdictions was dependent on an order being made by a Minister or a tribunal. The right to trade on Boxing Day can easily be removed by order. Certain jurisdictions such as Tasmania and Victoria are not reliant on orders being made for the right to trade on Boxing Day. While NSW has removed impediments to Boxing Day trading, the “freely elect to work” test is bound to fail. NSW should either go the full way to deregulation or go back to their earlier restrictive trade, rather than sit in an in-between position that is not fooling anyone. While there have been moves towards deregulation of retail trading on public holidays, there is a long way to go for states such as South Australia. While progress is slow, many retailers have adapted by moving their Boxing Day sales online. David Jones and Myer started their sales before their in-store sale started, a very welcome move.


Sunday 20 December 2015

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 – Reservist saved by implied freedom of political communication

An Army Reservist of Roman Catholic faith who was terminated due to his highly critical comments made on social media concerning gay members of the ADF, women serving on the front line, and Islam has been saved by the Federal Court who found the ADF’s termination decision was contrary to the implied freedom of political communication in the Constitution. The case sheds light on the extent to which the ADF (or employers by analogy) can control a person’s political expression on social media out of hours. Note that this is not an unfair dismissal case, as members of the Australian Defence Force (ADF) are not employees. Members of the ADF are commissioned, with their commission being governed by the Crown prerogative and regulated by the Defence Act 1903 (Defence Act) and the Defence (Personnel) Regulations 2002 (Personnel Regulations).

Background and facts
Mr Bernard Gaynor served in Afghanistan (2006) and Iraq (2006-7, 2008-9 and 2009) and was awarded the United States of America Meritorious Service Medal in October 2009. In July 2011 he transferred to the Australian Army Reserve. At the time the incidents that led to his termination occurred, Mr Gaynor was a Major in the Army Reserve.

In January 2013, Mr Gaynor launched a webpage, Twitter page and Facebook page to promote his candidature as a Senate Candidate for Katter’s Australian Party for the Federal elections in 2013. On 23rd January Mr Gaynor tweeted “I wouldn’t let a gay person teach my children and I am not afraid to say it”. Mr Gaynor’s webpage identified him as having served in the Iraq War. On the 24th January, Mr Gaynor made a press release available along the same lines, that parents should be able to choose if their children are taught by a gay teacher.

On 6 February 2013 Major Gaynor was interviewed and counselled by Lieutenant Colonel Buxton who directed Major Gaynor, using the relevant DI(G), not to make any further intemperate or inflammatory remarks on social media, whether or not on duty or in uniform while he remained a member of the ADF.

Mr Gaynor ignored this direction, and made no attempt to prevent his audience from knowing he was a current ADF Reservist. On 22nd March 2013 the Deputy Chief of Army sent Mr Gaynor a letter referring to his publications and asking him to stop. Mr Gaynor also ignored the direction contained in this letter.

In March and April 2013 Mr Gaynor published a number of controversial statements on social media including:
1.       A series of press releases, reflecting the material on his webpage, critical of the ADF’s participation in the Mardi Gras, stating that the ADF was accommodating to gay officers and transgender officers but discriminatory against Christian members who make public comment.
2.       Press releases critical of the ADF’s women on the front line policy.
3.       An article on his webpage headed “domestic betrayal a waste of soldiers’ sacrifices” which was openly critical of defence policy in Afghanistan and linked Islam to violence.
4.       A Facebook post which was critical of the ADF’s policies in relation to gay officers, sex-change operations, women serving on the front line, and Islam. The post contained a link to a press release by Mr Gaynor. Both the Facebook post and press release identified Mr Gaynor as a Reservist.
5.       A Facebook post where Mr Gaynor wrote “at what point does the ADF become complicit in child abuse? Should children be exposed to nudity and sexually explicit behaviour at the Mardi Gras?”
6.       A Facebook post critical of ADF personnel participation in Mardi Gras that directly mentioned the Deputy Chief of the Army. The identification of the officer was intended to mock and ridicule the officer. Mr Gaynor also mentioned the Deputy Chief of the Army in a tweet along the same lines.

In May 2013, Mr Gaynor became more aggressive in his strategy and turned specific attention to the transgender officer on the staff of the Chief of Army. His comments were personal and offensive such as “he thinks that because he has had a nip here, a tuck there and popped a bunch of pills that he is now a woman” and “the Army is now the employer of choice for those who want to take their cross- dressing career a little further”.

On 30 May 2013 My Gaynor was served with a Termination Notice issued by Chief of Army who was satisfied the criteria in reg.85(1)(d) and (1A) was established (Termination Notice). My Gaynor responded with a statement of reasons on 27 June 2013.

The decision to terminate Mr Gaynor’s commission was made on 10 December 2013 by the Chief of the Defence Force (Termination Decision). A variety of reasons were given in the termination decision including:
·         being openly critical on social media of ADF and government policy, support offered to gay and transgender members, and the decision to permit women to serve in combat roles;
·         clearly identifying as an active Army Reserve member on many occasions when making comments contrary to ADF policies;
·         behaviour generally acting contrary to policies and cultural change initiatives;
·         conduct repeatedly inconsistent with the DI(G) PERS 50-1;
·         failure to modify online behaviour; and
·         persistence of the conduct.

Mr Gaynor made a Redress of Grievance complaint, and progressed it through all internal avenues before the Chief of Defence Force finally rejected the Redress of Grievance on 30 June 2014.

Mr Gaynor challenged the Termination decision under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) as well as under constitutional grounds (s.116 freedom of religion, and the implied freedom of political communication). He was successful before Justice Buchanan on the implied freedom of political communication argument.

Defence Instructions (General) (DI(G))
The Secretary and Chief of the Defence Force have joint administrative responsibilities in the administration of the Defence Force (s.9A Defence Act). Instructions and policies issued with the authority of the Secretary and the Chief of the Defence Force pursuant to s.9A have statutory effect and are known as Defence Instructions (General) (DI(G)). DI(G)’s relevant to this case include:
·         DI(G) PERS 50-1 issued 18 October 2001 “Equity and Diversity in the Australian Defence Force”;
·         DI(G) ADMIN 08-1 issued 5 October 2007 “Public comment and dissemination of official information by Defence personnel”; and
·         DI(G) ADMIN 08-2 issued 16 January 2013 “Use of social media by Defence personnel”.

Mr Gaynor was required to follow these Defence Instructions.
Mr Gaynor was also required to abide by the Chief of Army Directive CA Directive 15/12 “Army Implementation Plan for Removal of Gender Restrictions” which attempts to improve the Army’s gender diversity and implement an ADF wide plan.

Personnel Regulations
Regulation 85 of the Personnel Regulations lists the reasons for which the service of an officer may be terminated. The list includes at 1(d):

“the Chief of the officer’s Service is satisfied that the retention of the officer is not in the interest of:
(i)                  The Defence Force; or
(ii)                The Chief’s service”

The reasons for which the Chief of the officer’s Service may be satisfied under 1(d) are not limited but include reasons relating to the officer’s behaviour.

Regulation 85(2) permits the Governor-General (or their delegate under reg.85(6)) to issue a termination notice stating the reasons, particulars and facts of termination, inviting the officer to give a statement of reasons and giving a period of at least 28 days for the officer to provide their statement of reasons.

Regulation 85(4) states that the Governor General (or their delegate under reg.85(6)) must issue a termination decision where a statement of reasons has been provided by the officer within the period, and having considered the statement, the Governor General is of the opinion the reason for termination has been established and has not been affected by a change of circumstance since the termination notice was given to the officer. 

In Mr Gaynor’s case, the Chief of the Defence Force and Chief of Army had been delegated the power to issue a termination notice and make a termination decision.

The ADJR Act claim
The ADJR Act claim was brought under s.5 of the ADJR Act. Mr Gaynor attempted to rely on every ground available in s.5(1), which made it difficult for Justice Buchanan to distil the essence of Mr Gaynor’s argument.

However, Justice Buchanan did conduct an analysis of possible grounds, reiterating that reg.85(1)(d) is a satisfaction power. The judiciary cannot rule on whether the satisfaction of a decision maker is appropriate, as this would amount to merits review, not judicial review. Similarly, the judiciary cannot analyse the appropriateness of ADF policies. The DI(G) applied to Mr Gaynor whether or not he was in uniform, as his service obligation was to obey the instructions and orders he was given and respect the disciplined nature of the ADF. The DI(G)’s themselves were not unlawful. There was no evidence showing bias, judgment or predetermination by the Chief of the Defence Force and no substance in any of the challenges to the Termination Decision under the ADJR Act.

The constitutional law claims
Section 116
Section 116 of the Commonwealth Constitution states:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

Mr Gayor argued that his posts on social media were protected by s.116 of the Constitution, as his comments amounted to the exercise of his Roman Catholic religion. Justice Buchanan immediately dismissed this argument, as the Termination Decision did not require Mr Gaynor to refrain from the exercise of his religion or satisfy a religious test of any kind. There is limited case law on the point, Justice Buchanan cited Mason ACJ and Brennan J’s test from Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120:
“The area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion”.

Justice Buchanan applied this test to Mr Gaynor’s situation and found s.116 could not be breached, as none of the instructions or orders given to Mr Gaynor or the Termination Decision infringe the test.

Implied freedom of political communication
Justice Buchanan begins his analysis by identifying the two limb test in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange):
Limb 1: Does the law effectively burden the freedom?
Limb 2: Is the object of the law compatible with the constitutional system of representative and responsible government and is the law reasonably appropriate and adapted to achieving that legitimate end?

Justice Buchanan also describes the distillation of the second limb of Lange in McCloy v State of New South Wales [2015] HCA 34 where the majority required proportionality testing in the second limb, requiring an analysis of whether the law is suitable, necessary and adequate in its balance. For a more detailed analysis of the two limbed test, see my blog post on McCloy v State of New South Wales [2015] HCA 34.

Importantly, Justice Buchanan reiterated that the freedom is not a personal right, and in Mr Gaynor’s case, the implied freedom is a suggested limitation on the discretion available under reg.85 of the Personnel Regulations. The first limb required an examination of whether the statements and communications by the applicant were political in nature. Justice Buchanan found that Mr Gaynor’s statements were clearly political in nature, and the fact the statements were offensive did not take them outside the scope of political discourse, even when directed at an individual. The Termination Decision was essentially disciplinary action which was an adverse consequence aimed at preventing further communications.

In considering the second limb, the reasons given in the Termination Notice were analysed. As identified in the facts above, the Termination Notice contained a mix of reasons for termination. The reasons included Mr Gaynor identifying himself as an ADF member while making his comments, but were not confined to this, and included the contention that Mr Gaynor’s public comments and general behaviour and his membership of the ADF as such were incompatible. Justice Buchanan concluded that the main reason behind the decision to terminate Mr Gaynor’s commission was the fact that Mr Gaynor had expressed his views publicly while he was still a member of the ADF.

Mr Gaynor had made the comments in a personal capacity, unconnected to the ADF except by the ongoing formal circumstance of his ADF membership. Justice Buchanan found the second limb of the Lange test was not satisfied. The decision to terminate Mr Gaynor’s commission exceeded the statutory authority under reg.84(4) of the Personnel Regulations because it was not reasonably proportionate and adapted to a legitimate end served by reg.84.

In applying the “suitable, necessary and adequate in its balance” criteria from McCloy, Justice Buchanan considered the question of whether “a regulation which directly prohibited the applicant’s conduct, would be valid if it was based on the same matters as the findings of CDF in the Termination Decision”. Justice Buchanan found such a regulation would not be “adequate in its balance”:
1.       Suitable – there is a need for discipline, obedience to orders and adherence to standards by ADF members, and a restriction on public comment is “suitable”.
2.       Necessary – there is not another obvious and compelling means of achieving the objective in the face of conduct such as Mr Gaynor’s who was defiant and intractable.
3.       Adequate in its balance –Mr Gaynor’s conduct involved the expression of political opinion, effectively as a private citizen. The burden on Mr Gaynor was significant, given the consequences of termination. The right to the freedom cannot be lost merely because of the main reason for termination, being Mr Gaynor remained a member of the ADF. Members of the full time regular services may rarely be free to publicy express opinions against the ADF, but the situation is not the same for Reservists who are often not on duty, and are private citizens when not in duty or uniform. When not in duty or uniform, Reservists should not have their freedom of political communication burdened.

While Justice Buchanan applied the elements of the McCloy distillation of the test, he made it clear his decision would fall the same way if he had applied the second limb of Lange in its traditional sense.

Key lessons
This case is a win for freedom of political communication advocates. It clearly states that the ADF cannot terminate a Reservist for expressing their political views where the political views are expressed when not on duty or in uniform, even where the Reservist makes it clear they are a current ADF member. The ADF case fell down on the “adequate in its balance” component of the second limb of the Lange test. If a decision lesser than termination had been made, this may have been “adequate in its balance”.

Analogies can be drawn from this case to the employment context. While each case will turn on an employee’s type of employment and the applicable policies, an employee’s freedom of political communication will be protected while the employee is acting in a private capacity. The protection may extend to instances where the employee states their connection to their employer, but this would depend on whether the second limb of Lange is satisfied, and in particular, whether the action taken against an employee is “adequate in its balance”. There is no higher authority case law on the application of the implied freedom of political communication to an employment law unfair dismissal context.

Note there is a strong chance this case will be appealed to the Full Court of the Federal Court and eventually the High Court. While it remains to be seen whether leave for appeal will be granted, given the case turned on the application of the “adequate in its balance” component of the test as enunciated in McCloy, and this is a new component of the second limb of Lange, there is a high chance leave will be granted.




Tuesday 8 December 2015

Law graduate job market 2016 – what will the new year hold for graduate lawyers?

The years 2013 to 2015 were not good years for law students to graduate. The law graduate job market retracted at the same time that the number of law students graduating and job hunting increased significantly. Will 2016 offer improved opportunities for law graduates trying to get their foot in the door? While the downward trajectory in legal demand continues, there are some positive signs for graduates trying to get their first job as a lawyer, particular if law graduates are looking in the right places. In this blog post I have drawn from my own experiences and understanding of the legal market as well as the Melbourne Law School and Thomson Reuters’ Australia: State of the Legal Market 2015 available here  

Traditional commercial law firms
Demand for commercial legal services in the Big 8 Firms (Allens, Ashurst, CU, CCW, HSF, KWM, Minters, Norton Rose) and larger firms has been on a downward trajectory for the past five years and the trend continues, with demand falling 2% in 2015 and a 3.8% decline in the number of lawyers employed in commercial legal services. The decline in demand is particularly prevalent in the industry’s three biggest practice groups – dispute resolution, banking & finance and general corporate advisory. Some Big 8 and large firms have continued to use offshore low-cost legal process operations in places like India for work like discovery, due diligence and document management services. While some of this work would ordinarily be given to graduates, most of this work is very basic and is more likely to effect the number of paralegals and administrative/support staff a firm employs than the number of graduates.

The outlook is not all doom and gloom for law graduates seeking a career in commercial law. Large law firms have been conservative in the number of graduates they have recruited the past three years, and in some cases, have under recruited. This could lead to an increase in graduate positions offered in 2016. Demand for legal work in some practice groups increased in 2015 including:

1.       Mergers & Acquisitions;
In 2015 there was a 2.1% increase in demand for M&A work. The weaker dollar has caused an increase in international investment in Australia, as investment is cheaper and there is a reduced risk of currency fluctuation for bidders. Australia is the second largest M&A region in the Asia/Pacific, second only to China. There is indication that these conditions for M&A will continue in 2016. There is potential for even greater growth in M&A, with the imminent review of the Foreign Investment Review Board. Large firms will look for graduates who have a keen interest in M&A, as this is a growth area in an environment where demand in other traditional areas of commercial law are in the decline.

2.       Real estate, property, constructions and projects;
In 2015 there was a growth in real estate and projects work, especially among the Big 8 firms.

3.       Intellectual property; and

4.       Tax law.
If you are interested in a career as a GST lawyer look out for a spike in recruitment if the rumoured GST reforms take place.

If you have a keen interest and/or experience in one of these growth areas, you have a stronger chance of obtaining a graduate position at a large firm. These growth areas could also lead to large firms engaging in strategic hiring – that is hiring graduates to settle directly into a team rather than undertaking the traditional rotation training program. These opportunities will usually be advertised separately to the ordinary graduate program and sporadically throughout the year, so make sure you regularly check your target firm’s website. Demand for services of Big 8 and large firms increases significantly in November to December (before the January slow down). Firms anticipate this and often recruit extra graduates in September/October. Law graduates applying at this time of the year are usually required to start work immediately. If you missed out on a position earlier in the year, or finish half way through 2016 make sure you watch out for these opportunities.

Law graduates keen for a career in commercial law should also look at medium sized firms that are rapidly growing such as Mills Oakley and HWL Ebsworth. In the past three years HWL Ebsworth increased its revenue from $102m to $219m. More growth means more jobs for graduates. Note that medium sized firms that have seen rapid expansion may not have had a formal graduate program before, so you will probably experience a few teething issues, such as less comprehensive formal training than if you were working as a graduate at a large firm. However, the benefit of working at a rapidly growing firm is that you will likely be given more responsibility earlier on and will always have enough work and billable hours. Medium sized firms are more likely to hire graduates on shorter term contracts, such as 6 months and 12 months, but don’t let this put you off. Any experience in the legal sector is better than none.  

New law
The last two years has seen the rise of the unconventional law firm, which commonly use technology and pricing structure to differentiate themselves. Examples of new law firms include HiveLegal, Nest, LawPath, and LawCentral. New law firms are increasingly seen as a threat to traditional small and medium sized firms, as they are able to contain pricing through use of digital solutions. Many are experiencing double digit growth.

What can these new law firms offer law graduates? You will be surprised that some new law firms, such as Legal Vision, regularly recruit graduate lawyers. These positions generally offer very interesting work and a young, upbeat and relatively relaxed working environment, so are perfect for law graduates who would like to work in commercial law but are not so keen on a strict corporate environment.

Government sector
Obtaining a job as a government lawyer at the Commonwealth level has been difficult the past few years as graduate programs were cut and an APS freeze was in place on new permanent ongoing employees. This freeze has now been lifted, so prepare for an increase in law graduate positions in 2016, particularly at AGS, which has survived its movement into the Attorney-General’s umbrella and is once again thriving. At the state level, getting a position as a graduate lawyer has been cut-throat for some time. For example, NSW Crown Solicitors are rumoured to take on only three graduates a year. However, the programs remain in place, and are up for grabs. Remember that government recruitment processes take much longer than private sector, so start applying at least 6 months before you would like to start a government job. Formal graduate recruitment programs often recruit 12 months in advance.

In-house lawyers
The trend towards having larger in-house teams continues and is likely to continue in 2016. Companies are performing an increased amount of legal work internally, relying less on advice from external law firms and briefing barristers directly instead of through law firms. Some in-house teams are large enough to constitute their own law firm and recruit graduates and junior lawyers. Companies to watch out for include Telstra, Lend Lease, Woolworths, Coles Myer, Microsoft, Google and Yahoo.

Multi-disciplinary practices (MDPs)
Consultancy and business advisory firms are expanding their portfolio to include legal.  PricewaterhouseCoopers (PwC), KPMG, EY and Deloitte have all indicated they will grow their legal capacity. Each of these firms already has over 1,000 lawyers working for them and the numbers continue to increase. These positions are predominantly in tax advisory law. If you have an interest in this area, it could be a good alternative to working at a Big 8 law firm.

Community legal sector

Community legal centres have been under severe financial strain for years, mainly due to government funding cuts. In December 2014 the Productivity Commission released its Access to Justice Arrangements report. The Productivity Commission looked at a broad array of factors effecting access to lawyers and legal services including the level of demand for legal services and the economic and social impact of the costs of accessing justice services and securing legal representation. The Productivity Commission recommended an immediate increase in government funding for legal assistance services of $200 million per year. A full twelve months after the report was released the Productivity Commission is still to receive a formal response from the government and the community legal sector continues to operate on the verge of collapse. Community legal centres can barely afford to pay their current employees, let alone employ and train graduates. Law graduates keen for a career in the community legal sector may have to obtain initial experience elsewhere and volunteer at a community legal centre until they can work in their dream job full time. 

Monday 30 November 2015

Personal use of work mobile phones – what are the limits? Applicant v NBN Co Limited [2015] FWC 7412

Do you have a work provided phone? Do you use this phone for personal phone calls? If your answers are yes and yes, this blog post is a must read. In Applicant v NBN Co Limited [2015] FWC 7412 (NBN Co Case) an NBN Co employee was dismissed after the employee accumulated $22,630 worth of personal international calls made to numbers in India and failed to co-operate effectively in paying this money back. The employee’s unfair dismissal application failed. Most work places permit “reasonable personal use” of work provided phones and mobile phones - however, policies differ, and you should check the relevant policies at your workplace which will usually indicate whether you can use your phone for personal use and the limits of that personal use.

A.      The NBN Co Case - Facts
An NBN Co employee used his work provided phone to make personal calls to his family in India, incurring international call costs of $22,630 in the period May to September 2004. Over a period of nine months, NBN Co attempted to come to an agreement with the employee about the repayment of the money, holding a number of meetings with the employee and his representative over this time. On 25 June 2015 after the employee continued to refuse to come to an agreement, NBN Co terminated his employment.

B.      Was the employee’s termination an unfair dismissal?
Section 385 of the Fair Work Act 2009 lists the criteria that must be established for an unfair dismissal:
(a)  the person has been dismissed; and
(b)  the dismissal was harsh, unjust or unreasonable; and
(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)  the dismissal was not a case of genuine redundancy.

In considering whether the dismissal was “harsh, unjust or unreasonable”, the FWC must take into account the criteria in s.387:
(a)  whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)  whether the person was notified of that reason; and
                (c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
                (d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
                (e)  if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and
                (f)  the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
                (g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
                (h)  any other matters that the FWC considers relevant.
 
NBN put forward two reasons which combined constituted a valid reason for dismissal:
1.       The employee’s excessive use of the phone in breach of policies; and
2.       The employee’s refusal to agree to a repayment plan.

Breach of policies
There were two relevant NBN Co policies:
1.       IT Equipment Policy
The IT Equipment Policy gave the employer the right to audit and review phone and data usage and if inappropriate use is identified the policy allows NBN to recover costs from the employee and commence disciplinary action including termination of employment. Accounts where the monthly call charge is greater than $75 are to be investigated under the policy. The employee was aware of this policy.

2.       Acceptable Use Guideline
The Guidelines permit reasonable personal use of mobile calling within Australia only.

The employee claimed he was not aware of the Acceptable Use Guideline at the relevant time, being the time he was making the personal international phone calls. While the employee was not provided with a copy of the Guideline at his induction:
·         there was nothing in the induction suggesting unlimited personal international calls was permitted; and
·         the IT Equipment Policy of which the employee was aware stated that use of work provided mobile phones will be monitored and if monthly call costs exceed $75, they will be investigated.

In these circumstances the employee should have taken steps to find out whether he could make personal international calls on the work provided phone and locate the relevant policy. The employee did not ask his manager about call costs or seek out the Guideline.

Deputy President Gooley also noted that NBN Co did not follow their own policies in monitoring phone usage. NBN Co did not review usage for all accounts where usage exceeded $75 as required by the IT Equipment Policy. The employee’s call usage was on average $8,000 - $12,000 per month, far beyond the $75 investigation threshold, yet it took months for the employer to review the account. Even when the issue was identified, the employee was not initially told the full extent of the money he owed. The employee was notified of about $7,500 worth of personal calls in September 2014, but it was not until later that a full investigation found $22,630 was owed and the employee was notified of this revised amount. Had the employee been aware of the matter sooner, he would have stopped making the personal international calls.

Refusal to agree to a repayment plan
Where a debt is owed to an employer and there is a legitimate basis for the debt to be disputed, the mere existence of the debt alone will not be a valid reason for dismissal. However, in this case, Deputy President Gooley held that there was no reasonable basis for the employee to dispute the debt, as the policies were incorporated into his employment contract and he had clearly breached the policies. It was unreasonable for him to refuse to enter into an agreement plan to repay the money, and this was a valid reason for dismissal.

The key to Deputy President Gooley’s decision was that NBN Co had managed the investigative procedure in accordance with procedural fairness, giving the employee several opportunities to come to an agreement for repayment.

NBN Co organised a number of meetings over a period of nine months to try and come to an agreement on a repayment plan. Over this time, the employee changed his stance several times, initially offering to repay the amount, repaying $7,500 and asking not to be required to repay the remainder, and finally retracting his offer to repay the amount. NBN Co sent a warning letter in February 2015 stating that the employee had breached NBN Co policies and that if the outstanding amount of $15,130 was not repaid, NBN Co would consider further disciplinary action including the likely termination of employment. On 11 June 2015, after a number of unsuccessful meetings between the employer and employee, NBN Co issued a show cause letter asking the employee to accept a proposed repayment plan of $200 per fortnight or for the employee to propose an alternative regular repayment, or NBN Co would consider further disciplinary action including termination of employment. A number of further meetings were held. On 25 June 2015 the employee and the employee’s representative attended a meeting where various proposals were discussed, by the employee would not move on his non-negotiable position that the final warning be revoked, and NBN Co terminated the employee’s employment. Section 387 directs attention to whether the applicant was given an opportunity to respond and was notified of reasons for dismissal. All of the steps NBN Co took in providing sufficient opportunities to come to an agreement were important in the refusal to come to a repayment plan being a valid reason for dismissal.

C.      Key points from the NBN Co Case
Employees
1.       You may have to take your own steps to access IT policies relevant to phone usage. Do not assume that you can use a work provided phone for personal use.
2.       One policy may direct your attention to another policy – make sure you seek out the second policy. In the NBN Co Case the employee was aware of the first policy which indicated there were restrictions on personal use of work provided mobile phones. The employee was aware of this first policy and should have sought out the second policy which described in more detail the boundaries of the personal use.
3.       If you are unsure about whether you can use your work phone for personal use or the extent to which you are permitted to use your phone for personal use, make sure you clarify your concerns with your manager prior to using your phone for personal use. In the NBN Co Case Deputy President Gooley stated “the Applicant should have made inquiries of his managers. Without express advice that a work provided phone can be used for both personal and local use and internal calls an employee cannot simply assume that such use is approved”.

Employers
1.       When providing mobile phones to employees, the employer should point out the relevant policies that apply and provide employees with access to these policies.
2.       It is important to ensure investigation and usage management practices in policies are complied with. In the NBN Co Case the IT Equipment Policy stated that phone usage will be investigated where call costs exceeded $75 per month. These investigations were not always conducted when the $75 trigger point was met.
3.       Successfully managing an employee who has potentially breached a policy by using their work provided phone for prohibited personal use may take months. An employee must be given an opportunity to respond to allegations and have a support person present at discussions relating to the dismissal. If there are reasonable alternatives to termination, these should be considered. 
4.       Ordinarily the fact an employee has a debt to the employer alone will not be sufficient to justify dismissal, especially where the employee has reasonable grounds to challenge the employee’s finding. Alternatives to dismissal may be available in these situations.
5.       Where an employee makes a formal grievance complaint about the investigative process, ensure the grievance complaint is considered and responded to prior to further action (such as termination of employment) is taken.


Tuesday 24 November 2015

What is the difference between judicial review and an appeal?

Understanding the difference between judicial review and an appeal is particularly important for junior lawyers working in litigation, public law, and the court system (such as associates, tipstaves and researchers). Although the basics of judicial review are taught at law school, it can be easy to quickly forget the basic distinction between judicial review and an appeal.

Appeal
An appeal challenges the outcome of a particular decision made by a tribunal or court. Generally, a person who is a party to the matter or aggrieved by the decision can lodge an appeal. Understanding the court hierarchy and statute detailing the right to appeal is important in understanding where to lodge your appeal. For example, if the original decision was made by the Victorian Civil and Administrative Tribunal (VCAT), an appeal can be made to the Supreme Court of Victoria (except if the decision was made by a President or Vice President of VCAT where the application for appeal must be made to the Court of Appeal).

Appeals can be by right or discretionary. Where the appeal is discretionary, an application must address why the appeal should be allowed and the grounds for appeal should. Leave to appeal will generally be granted at the Court of Appeal level where the applicant has “a real prospect for success”.

An example of when leave to appeal is required is for appeals to the High Court acting in its appellate jurisdiction under s.73 of the Commonwealth Constitution. The potential appellant must make an application for leave or special leave to appeal by filing Form 23 (r.41.03 High Court Rules 2004). Where leave is granted to appeal, the appellant can then initiate the appeal proceedings by filing the Form 24 notice of appeal (r.42.01, r.42.02 High Court Rules 2004).

After an appeal has been allowed, the appellate court will then make a decision as to whether the grounds of appeal have been made out. The appeal court will consider the submissions and decide on one of the following outcomes:
1.       Affirm the lower court decision;
2.       Modify the lower court decision – where the appellate court agrees in part with the lower court decision; or
3.       Reverse the lower court decision and find for the appellant. Where the appellate court finds that the lower court’s decision cannot be sustained, the decision of the lower court can be set aside. Reversing the lower court decision may also include setting aside orders made by the lower court and making new orders.

Pursuing judicial review of a decision is very different from appealing a decision. While an appeal focuses on whether the decision itself is correct or incorrect, judicial review focuses on whether the decision maker conformed with statutory or common law powers conferred on the decision maker.

Judicial review
Judicial review is an application for the court to determine whether an official action conforms with the power given. The judicial review process scrutinises the decision making process and analyses whether or not the decision was made within power. Decisions that may be subject to judicial review include decisions made by the executive arm of government, decisions made by tribunals, and decisions made by lower courts.

Examples of when an application for judicial review might be made is where there is some evidence the entity/decision maker granted with the public power has:
·         breached the limits placed on the grant of that power;
·         done something more than was authorised;
·         done something authorised in an unauthorised way; or
·         not done something when there was a duty to act.

The bar for finding an error has occurred is high – it is not enough that the court would have been minded to act differently – the regulator’s misjudgement or error must be so substantial as to take the impugned act or omission beyond that realm where reasonable minds would agree to differ.

The power to conduct judicial review comes from a number of sources:
1.       State and Territory Supreme Courts – the judicial review jurisdiction was part of the common law powers of the Supreme Courts at their foundation, and included the power to issue prerogative writs such as certiorari, prohibition and mandamus. Several jurisdictions have extended review powers to tribunals, such as NSW which has the NSW Civil and Administrative Tribunal and Victoria which has VCAT.  
2.       Federal Court (ADJR Act review)– has been granted a statutory judicial review jurisdiction by the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Federal Court can also undertake Constitutional judicial review, as s.39B(1) of the Judiciary Act 1903 gives the Federal Court similar jurisdiction to the High Court’s judicial review power under s.75(v) of the Commonwealth Constitution.
3.       High Court (Constitutional judicial review) – section 75(v) of the Commonwealth Constitution gives the High Court original jurisdiction in a number of matters including all matters “in which a writ of Mandamus or prohibition or injunction is sought against an officer of the Commonwealth”.  

Where a decision maker has not acted in conformity with the power given, the court will treat the decision as a nullity. The purported exercise of power is disregarded and is treated as yet to be effectively exercised. The court conducting the judicial review generally cannot substitute its decision for the decision of the original decision maker. If a court decides a decision was made beyond the scope of the original decision maker’s powers, the matter will be sent back to the relevant tribunal or government agency for the decision to be remade in accordance with the decision maker’s powers.

At common law, a number of remedies developed from prerogative writs are available where an application for judicial review is made. A prerogative writ is an official order whereby the judiciary directs another arm of government (the executive). These remedies commonly include:
1.       Mandamus – compels the performance of a public duty – i.e. compels a decision maker to make a decision.
2.       Prohibition – prohibits the decision maker from acting outside of the law.
3.       Certiorari – quashed past conduct for which there was no jurisdiction.

Less commonly:
4.       Quo warranto – requires a person to show the authority on which they hold a certain power.
5.       Procedendo – appellate court orders a lower court to proceed with judgment.

The ADJR Act expanded the type of remedies available and removed some of the requirements of the prerogative writs. For example, remedies available under s.16(1) of the ADJR Act include:
1.       Quashing or setting aside the decision;
2.       Referring the decision back to the decision maker for further consideration;
3.       Declaration stating the rights of the parties; and
4.       Directing parties to do or refrain from doing an act.

The outcome of a judicial review is very different to the outcome of an appeal where a judge can substitute the decision of the first instance judge with its own decision where necessary.

The distinction sounds easy….

The distinction between an appeal and an application for judicial review appears easy. However, it can get confusing for junior lawyers when reading a judgment where it is not made initially clear whether it is an appeal or a judicial review. In this case, scroll to the bottom of the judgment and look at the language used in the decision and orders. It is important to keep the difference in the forefront of your head. While most of the time litigation lawyers will appeal decisions, there may be circumstances in which an application for judicial review may lead to the desired outcome, especially where damages are not sought. 

Saturday 21 November 2015

Work Christmas parties – a legal survival guide

Work Christmas parties can be a legal mine field for both employees and employers. The work Christmas parties of 2014 were particularly wild and resulted in the unfair dismissal case Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 (Keenan). There are a number of points both employees and employers can take from this case to ensure work Christmas parties are fun, safe and stress free.

The facts in Keenan
Mr Keenan was employed as a Team Leader on the Leighton Boral Amey Joint Venture (LBAJV) which maintained the roads in the Sydney area. He was also an AWU delegate and an elected Work Health and Safety Representative. The LBAJV held their 2014 work Christmas party on 12 December in a private function room at the Novotel Sydney Brighton Beach Hotel. Beer, wine, mixed drinks, finger food and canapés were provided by the Hotel. The Christmas party event ended at 10pm. After this time, some employees stayed on in the public area of the hotel. During and after the event, Mr Keenan engaged in conduct that resulted in a number of complaints. After hearing evidence Vice President Hatcher found that a number of incidents had occurred:

During the Christmas party
1.       Inappropriate behaviour and language towards Mr Boggan – Mr Keenan told Mr Boggan to “fuck off mate” when he tried to join a conversation.
2.       Bullying of Ms Stokes (first incident) – Mr Keenan said to Ms Stokes “All those Board members and managers are fucked, they can all get fucked. Kevin Badger is a cunt” and asked Ms Stokes aggressively “what do you even do...no seriously. Who the fuck are you? What do you even do here?” Ms Stokes was offended and walked away.
3.       Harassment of Ms Kennedy – Mr Keenan sat on a chair directly next to Ms Kennedy and “interviewed” Ms Kennedy asking her about her marital status, whether she is in a relationship, and how many children she has. Mr Keenan said “I want to ask you for your number, but I don’t want to be rejected”. Ms Kennedy was extremely uncomfortable and when a colleague came to save her from the situation she left the Christmas party.

After the Christmas party
1.       Further harassment of Ms Stokes – after the Christmas party had officially ended at 10pm a number of staff members moved to the public bar area and purchased their own drinks. Ms Stokes was sitting in the courtyard area when Me Keenan approached, spoke to Ms Stokes, moved closer and closer, and tried a number of times to touch the dimple on Ms Stokes’ chin.
2.       Bullying of Ms Cosser (first incident)– Ms Cosser was talking to Kevin Badger. Mr Keenan came over after the conversation had ended and said “why the fuck are you talking to Kevin?”
3.       Bullying of Ms Cosser (second incident) – Mr Keenan was talking to Ms Cosser in the public terrace area. Mr Keenan said “I used to think you were a stuck up bitch, but Ryan says you are alright. If Ryan likes you then you must be ok”. Ms Cosser was upset and cried by the incident.
4.       Sexual harassment of Ms O’Reilly – Mr Keenan was sitting next to Ms O’Reilly at the bar when he suddenly grabbed Ms O’Reilly’s face and kissed her on the mouth.
5.       Sexual harassment of Ms Kearns – while a group of colleagues were waiting for taxis, Mr Keenan said to Ms Kearns “My mission tonight is to find out what colour your knickers are”. Ms Kearns replied “They are white, touch my skirt and I will kill you”.  

At a meeting held on 18 December 2015 the eight allegations were put to Mr Keenan, but evidence showed that the factual content of most of the allegations was not identified in a way that allowed Mr Keenan to give an informed response. LBAJV made the decision to terminate Mr Keenan’s employment relying only on allegations regarding the sexual harassment of Ms Kennedy and the sexual harassment of Ms O’Reilly. This decision was put to Mr Keenan on the 20 January 2015. Mr Keenan had a representative from the AWU, with him for both the meetings. At both meetings Mr Keenan and his representative suggested a number of alternatives to dismissal.

Consideration by Vice President Hatcher
VP Hatcher had to decide whether Mr Keenan was unfairly dismissed. LBAJV relied on the allegation of sexual harassment towards Ms Kennedy during the Christmas function and the sexual harassment of Ms O’Reilly after the Christmas party to justify the dismissal. VP Hatcher divided his consideration of whether Mr Keenan was unfairly dismissed into whether conduct during the event could justify dismissal and whether conduct after the official Christmas party had ended justified dismissal.

1.       Conduct after the Christmas party
“Out of hours” conduct can constitute a valid reason for dismissal in specific circumstances where the conduct complained of is “of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee” (Rose v Telstra Corporation Limited [1998] AIRC 1592). Where an employer is vicariously liable for the conduct of an employee outside work hours, this creates a sufficient connection between the conduct and the employer to come within the scope of legitimate employer supervision. VP Hatcher therefore had to determine if the conduct at the upstairs bar after the Christmas party was unlawful sexual harassment for which LBAJV could be vicariously liable.

Mr Keenan’s conduct in suddenly kissing Ms O’Reilly is clearly sexual harassment within the meaning of s.28A of the Sexual Discrimination Act 1984. For the employer to be vicariously liable for sexual harassment of an employee, the employee must have done the sexual act “in connection with the employment of the employee” (s.109 SD Act). The test for vicarious liability is not a “but for” test. There must be some connection which is more than an incidental connection (Keenan [101]). VP Hatcher found Mr Keenan’s conduct in the upstairs bar was merely incidental to his employment and LBAJV were not vicariously liable, as the social interaction which occurred was not in any way organised, authorised, proposed or induced by LBAJV.

Outside of the sexual discrimination context, VP Hatcher found none of the conduct that occurred in the bar after the Christmas party would justify dismissal, as it was private conduct and there was no evidence the capacity of the second person to perform their work at LBAJV was affected.

2.       Conduct during the Christmas party
Prior to the Christmas party, employees were informed of the time boundaries (6pm to 10pm) and physical boundaries of the function and reminded that normal work standards of conduct would apply at the function. VP Hatcher found Mr Kennan’s interactions with Ms Kennedy was “a boorish attempt by a drunk to lay the foundation for a future relationship” but was not sexual harassment and not sufficiently serious to justify dismissal.

VP Hatcher found that the most serious allegation was Mr Keenan’s conduct towards Ms Stokes (“What do you even do?...No seriously. Who the fuck are you? What do you even do here?”),
as it was entirely unprovoked, aggressive, intimidatory behaviour from an intoxicated middle aged man to a much younger and smaller female. This was a valid reason for dismissal.

Although VP Hatcher found a valid reason for dismissal existed, LBAJV were not able to rely on this reason. Section 387 of the Fair Work Act 2009 lists certain factors that must be taken into account when determining whether a dismissal was harsh, unjust or unreasonable. The following factors were taken into account in determining Mr Keenan’s dismissal was unjust:

1.       There was no evidence Mr Keenan’s conduct towards Ms Stokes had ongoing consequences for the workplace including Ms Stoke’s capacity to perform her work.
2.       Mr Keenan had a good employment record in excess of seven years.
3.       Mr Keenan’s behaviour was isolates and aberrant in nature.
4.       Alcohol was an exacerbating factor: “it is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol at a function”. LBAJV took no steps to satisfy itself how the Hotel would discharge its responsible service of alcohol obligations. LBAJV did not place anyone with managerial authority in charge of the function, but essentially let it run itself.
5.       There were other disciplinary alternatives available other than dismissal, such as a ban from future Christmas parties and a final warning. The factual basis of all the allegations was not put to Mr Keenan.
6.       An employee who had displayed similar misconduct (saying “do you want us to get our cocks out and measure them too?” to a female employee) merely received counselling, and it was very inconsistent to dismiss Mr Keenan where the conduct was similar in nature and seriousness.

Lessons to learn – employees
1.       Attendance at a work Christmas party will usually be considered to be “during working hours”, and the employer will be able to regulate the employee’s behaviour;
2.       The same code of conduct and standards of behaviour that apply at work will be required at a Christmas function - behaviour that is not appropriate at work is unlikely to be appropriate at a work Christmas function;
3.       If you are drunk at a Christmas party and misbehave, the court is likely to favour the recollections of other witnesses over your evidence, as a drunk’s recollection will generally be unreliable;
4.        If allegations are made against you, you are entitled to procedural fairness such as having a support person with you during meetings, having the factual basis for the allegations put to you, and being given an opportunity to respond.

Lessons to learn – employers
1.       Remind staff prior to the event of the standard of behaviour expected at the event. Remind staff members that the Code of Conduct and other policies will apply. In Keenan, VP Hatcher said the fact LBAJV had made it clear that compliance with its standards of behaviour at the Christmas party was expected, was critical to ensure this standard of behaviour was later enforceable.
2.       Ensure the official start time, end time and geographical limits of the Christmas party are made known to employees.
3.       Employers should take steps to ensure alcohol will be served responsibly. If an event is being held at a hotel, employers should make inquiries and satisfy themselves of the steps the hotel will take to ensure the responsible service of alcohol. Employers should make it clear alcohol is not to be “self-serve”.
4.       Ensure someone of managerial level is at the event to be a contact person and be responsible for the event. It is not sufficient to let the event “run itself”.
5.       Complaints of employee conduct should be handled consistently. The substance of each allegation should be put to the employee, not by asking open questions but by putting the factual allegations of the complaint to the employee.

Have fun at your 2015 Christmas party, but make sure you get it right. One mistake can make the matter drag on for months. The judgment in Keenan was not handed down until 26 June 2015, six months after the Christmas party occurred. This is relatively quick for the resolution of a legal matter. Don’t let this happen to you.

Remember that this is a blog post, not legal advice. Seek independent legal advice before relying on anything in this blog post.