The Issue

Everybody loves a work Christmas party. Who doesn't enjoy sharing a drink or two (or three!) with colleagues on the company credit card?!

Given this, we are usually not surprised to hear that a colleague consumed too much alcohol and did something that will leave them feeling very embarrassed come the following morning.

In recent years, the Fair Work Commission has heard a number of matters in which drunken employees were dismissed for bad behaviour at their respective work Christmas parties. However, one dismissal was deemed unfair, while in others it has not been determined to be unfair. Why?

Misbehaving employees

In Keenan v Leighton Boral Amey NSW Pty Ltd, a drunken employee was dismissed for verbally abusing his boss and sexually harassing a fellow colleague. Despite the employee being warned that the usual workplace code of conduct would apply at the Christmas party, the Commission still found that the employee's dismissal was unfair.

In reaching this decision, the Commission determined that the employee's bad behaviour was "isolated" and completely out of character. The Commission laid blame partly on the fact that free alcohol was supplied by the employer, noting that 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."

More recently, in Vai v Aldi Stores (A Limited Partnership), an employee was dismissed for misbehaviour at a work Christmas party at which the employer also supplied free alcohol. In this matter, the employee threw a full glass of beer towards other employees. However, in this case, the Commission found the dismissal to be fair.

Why the difference?

Unfortunately, it is not obvious why one dismissal was unfair and the other was not. The conduct of the employee in Keenan was arguably more serious than the conduct in Vai. However, in the case of Vai, the work function was at a hotel where the serving of alcohol was controlled and where there were senior staff present to supervise. In Keenan, employees were able to serve themselves alcohol and no one was given the task of supervising the function.

Is there a precedent?

The contrasting outcomes in the two cases make it difficult for employers to know whether it would be unfair for them to dismiss an employee who has misbehaved at a work function. The Commission has shown itself willing to hold employees responsible for their own bad behaviour where the employer has acted responsibly in the provision of alcohol. However, where free alcohol is provided to employees without supervision, then an employer may have difficulty holding its employees responsible for their bad behaviour at work parties.

What can employers do?

To help limit the possibility of bad behaviour at your next work party, consider either limiting the amount of alcohol supplied or choose not supply any alcohol at all. We also recommend employers make clear to employees prior to any party that the behaviour expected of them at the party will be the same that is expected when they are attending work.

If limiting alcohol is not an option, employers must accept that some employees may consume too much alcohol and behave badly. While each matter is determined by its facts, the above cases indicate that the more alcohol an employee consumes, and the more their subsequent bad behaviour is considered to be out of character, the more likely any dismissal for that bad behaviour will be deemed unfair.

For further information on unfair dismissal, visit our article: Employment termination.

We have helped many individuals and businesses with legal advice on unfair dismissal matters, and it would be our pleasure to assist you. We provide fixed prices and offer substantive free benefits to all customers who run a business. Click here for full details. Call Sharrock Pitman Legal today on 1300 205 506 or fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

Samuel Ellemor

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

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However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Unfair Dismissal and the work Christmas Party

The Issue

Misbehaving employees

Why the difference?

Is there a precedent?