Workplace Christmas functions are a great way to reward staff and encourage connectedness, both of which are key to creating a high-performing team. However, the work Christmas party can often result in HR nightmares if handled incorrectly.

We have set out a guide to ensuring your end of year celebrations remain legally uneventful:

Step One: Set and communicate clear expectations – ensure your workplace policies address conduct both in the workplace and at work-related functions, provide refresher training if necessary.

Step Two: Remind employees of these expectations – send an email prior to the event reminding staff of your policies and expectations, restate disciplinary action will be taken if these policies are breached, set clear start and end times and remind employees continued socialising after the work function is independent of the work function.

Step Three: Be a role model and adhere to WHS obligations – ensure non-alcoholic beverages and sufficient food is provided, complete safety assessment of venue, and be aware of the importance of proper behaviour ‘from the top down’.

Step Four: Be proactive in addressing complaints and seek legal advice where necessary.

John Keron v Westpac Banking Corporation

A recent unfair dismissal case provides a good reminder of where the line is drawn for out of hours conduct at work-sponsored social events. The conduct which led to the dismissal occurred at a social event hosted by Westpac following a mandatory workshop for banking staff. Westpac arranged an optional-attendance social event at a nearby pub. For two and a half hours, the Westpac staff who attended were provided with unlimited free alcohol.

Later that evening, a sexual assault was alleged to have occurred by a male employee on a female staff member. When the employees left the pub, the same male employee was alleged to have verbally harassed another female employee. Westpac investigated and subsequently dismissed Keron, the male employee, relying on both incidents as valid reasons for the dismissal.

Keron challenged the dismissal on the basis that the incidents happened hours after the work-event finished when he was not on the clock. So where did the Fair Work Commission draw the line with work-sponsored social functions?

The first assault incident was found to have a sufficient connection to Keron’s employment despite employee attendance being optional. Notably, the FWC considered that because the employees remained in the same venue within the same group of people, even though the organised work event ended hours earlier, the event remained a ‘work-related event’ for the purposes of the workplace policies regarding sexual harassment until the employees left.

However, the FWC found in favour of the employee on the verbal assault incident, finding that it was not sufficiently connected given both employees had travelled to various venues and the employees were not previously known to each other.

Return to Work Corporation of SA v Valentine and Karrara Hair and Beauty Centre

The South Australian Employment Tribunal has awarded compensation to an employee who fractured her hip exiting a spa bath while significantly intoxicated at a work Christmas party.

The employer’s conduct was critical in establishing significant connection between the workplace and the injury, as the Tribunal found that the employer wanted employees to “let their hair down”, provided “ample alcohol” and allowed employees “wide discretion” as to how they behaved at the work function.

It was established that the use of the spa bath was not a separate activity as doing so was well within the scope of the activities provided by the employer that day, which included watching a strip-tease show. Critical video evidence showed that the employer talked to the employees while they were in the spa bath, drinking wine from the bottle and sliding their bodies around on the soapy tiles “without any suggestion of concern”.

Importantly, although the employer eventually told the employees “enough is enough”, this  was insufficient to establish that the employee engaged on a “folic of her own” given the above circumstances.

Key Lessons

1. Implementing and educating employees on workplace policies is critical to defend these claims
2. Make travel arrangements to enforce the conclusion of the event – the Deputy President make a specific criticism of Westpac for failing to make travel arrangements for employees. For small businesses, this should be ensuring employees make their own travel arrangements ahead of time, as a minimum
3. Choose an appropriate venue. Both Karrara Hair and Westpac were criticised for their choice of venue and subsequent activities for a work-related event. Westpac in particular was criticised heavily considering the organisation “seeks to create a work environment which welcomes women and employee of diverse ethnic and religious backgrounds.”
4. Ensure alcohol consumption is appropriate for a work event.