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‘Tis the season to be jolly, but employers beware!

By Gerard Twomey

• 29 November 2017 • 3 min read
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What measures can employers put in place to address risks that arise from Christmas and End of Year functions

With the festive season getting into full swing, risks arise for employers when holding end of year functions. The following discusses the measures that can be put in place to address these risks.

End of year functions present an excellent opportunity to catch-up with clients and colleagues to celebrate all of the successes and hard work during the year. However, when employees engage in inappropriate behaviour at these functions or afterwards, the celebration can quickly turn into disaster.

Potential claims employers can be exposed to through inappropriate behaviour at the end of year function include sexual harassment, bullying, discrimination and breaches of workplace health and safety obligations.

Overdoing the cheer...

These functions are usually at venues away from the workplace and outside the usual hours of work. They can also often involve the provision of unlimited alcohol. A clear trend arising from Fair Work Commission (FWC) cases in recent years is the responsibility employers have when serving unlimited alcohol at work events:

  • In Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 an employee became intoxicated at the office Christmas party, where there was unlimited service of alcohol. The employee engaged in inappropriate conduct both at the party and at an unofficial afterparty. This included placing his hands on a colleague's face and kissing her on the lips and telling another colleague that is was his mission to find out the colour of her underpants.
  • In McDaid v Future Engineering and Communications Pty Ltd [2016] FWC 343 an employee was dismissed after he acted in an aggressive manner and pushed a colleague into a swimming pool at the Christmas party before getting into a fight with his manager.

Both employees were dismissed for their behaviour and lodged unfair dismissal claims. In Keenan, the FWC held that the dismissal was unfair because it was out of character for the employee, much of the conduct occurred out of work hours and was linked to alcohol supplied by the employer. In McDaid, the FWC held that the dismissal was not unfair in part because this was not an isolated incident and the behaviour was not out of character for the employee.

Despite the different outcome in these two cases, it is clear from the reasoning in both cases that an employer may be partly responsible for events attributable to consuming alcohol at a work function.

Steps to ensure responsible merriness

To help ensure your organisation's end of year function is a great celebration and doesn't descend into scenes resembling 2016's box office hit Office Christmas Party, employers should take the following steps:

  • ensure employees are aware of the appropriate workplace behaviour policy and have received regular training on it
  • send a reminder email to all employees prior to the Christmas party:
    • reminding them that the function is a work event, appropriate workplace behaviour policies apply and include a link to the relevant policy/s
    • reminding them that a failure to act in accordance with the policies may result in disciplinary action which could lead to termination of employment
  • perform a risk assessment of the event venue to identify any potential hazards for employees
  • ensure responsible service of alcohol at the event including providing non-alcoholic options and light beer
  • set specific start and finish times for the event and any afterparty and organise safe travel options home
  • have designated responsible staff members to remain sober during the event and ensure staff members remain safe.

Navigating the end-of-year workplace minefield?

Contact the Employment, Remuneration & Benefits team.

By Gerard Twomey

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