A Fair Work Commission ruling and an employment lawyer's advice show how far out-of-hours conduct rules reach beyond the party
When staff kick on to a pub after the official Christmas party, an employer's duty of care and code of conduct can follow them out the door. A Fair Work Commission (FWC) decision handed down in August shows how far that reach extends – a timely warning as end-of-year functions approach.
In Cameron Bell v Arts Centre Melbourne [2026] FWC 3212, Commissioner Perica upheld the summary dismissal of a building maintenance officer who struck a colleague in the head at a bar about 200 metres from Arts Centre Melbourne (ACM), after the Victorian public sector arts agency's December 2024 Christmas party had ended.
John Farren, director at Farren McRae Workplace Lawyers and Consultants, told HRD that most employers already accept their obligations at the party itself.
"The more difficult issue is the one that that case dealt with, which is when you leave the work-sponsored thing and go somewhere else," he said.
When does a kick-on become work-related?
ACM's function for around 600 staff wrapped up at about 7pm on 9 December 2024. About 20 employees then walked to Beer DeLuxe at Federation Square. ACM did not organise, fund or authorise the gathering.
In the smoking area, an argument escalated. The worker struck the colleague – the agency's head of venue planning, whom he had never met – who fell into a gas heater and onto the ground. The worker was suspended on pay the next day and summarily dismissed on 19 December 2024.
The Commission applied the test from Rose v Telstra Corporation (1998): whether out-of-hours conduct is "of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee".
It found two of the test's three limbs were met – the conduct was likely to seriously damage the employment relationship and was incompatible with the worker's duty as an employee. The two men were only together because of the work party, the venue was a short walk away, and the colleague said he was "afraid to work alone" afterwards. As a public sector employee, the worker was also bound by codes requiring respect towards colleagues beyond the workplace.
"Physical violence against another person must be close to the nadir of disrespect," Commissioner Perica wrote.
The Commission rejected the worker's provocation and self-defence arguments, as HRD's earlier coverage of the Arts Centre Melbourne dismissal ruling details.
Writing on LinkedIn, Farren said: "If the gathering arises directly from the work event and involves colleagues, the necessary employment nexus can survive the walk down the road."
Where the employer's interest stops
Farren stressed the connection is not automatic.
"Just the mere fact that they say, go to another pub and get drunk, that's not something that the employer is going to have any interest in at all," he said.
The question is whether conduct damages the employer's reputation or relationships between staff. "So if you've got two people who can't work together on Monday after, say, one has assaulted the other, well, then that goes directly to the employer's interests," Farren said.
The line can fall the other way. In the 2015 Keenan case, where employer-supplied alcohol mitigated misconduct, behaviour in a public bar after the formal function was found to lack sufficient connection to employment.
Farren suggested employers ask uniformed staff to change before heading elsewhere, as identifiable employees behaving badly in public create reputational risk. He also noted the decision did not address whether an employee injured at kick-ons could claim workers' compensation – stressing he is not a workers' compensation specialist, he said such injuries would probably not be covered in most states.
How HR can manage Christmas party risk
At the event itself, work health and safety (WHS) duties still apply. "So they have to take all reasonable steps to ensure the health and safety of the workers at work," Farren said.
Alcohol is the main pressure point. "So I've repeatedly over the years told employers that they shouldn't have open bars, for example," he said. For larger in-house events, he recommends hired service staff told to stop serving anyone becoming intoxicated or behaving badly.
Farren's firm asks staff to use the company's rideshare account to and from its annual dinner. "So that they know that then they can have some drinks and not have to worry about driving, and we don't have to worry about them drink driving," he said.
He also advised vetting entertainment so it cannot offend on discriminatory grounds, and staying alert to illegal drugs at the venue. HRD's guide to managing misconduct risk at work functions outlines further controls, while Farren's post urges employers to ensure codes of conduct cover work events and their immediate aftermath.
He acknowledged no one wants to be the wowser at the party. "But, you know, that's just part of being an employer," he said.
