This time every year, Aitken Legal reminds employers to protect themselves from the risks which often arise during workplace Christmas parties.

End of year workplace celebrations are a great way to reward staff and encourage team bonding, which are both key contributors to developing and maintaining strong team relationships. However, the workplace Christmas party can quickly become an event where significant risks can arise, particularly if the function is not organised with those potential risks in mind.

We have set out the below guide to assist employers in ensuring their holiday celebrations remain (legally) uneventful.

Step One: Set clear expectations

Employers should ensure their workplace behaviour policies address conduct both in the workplace and at work-related functions. This year, employers should pay particular attention to ensuring that their policies on sexual harassment are up to date, and take into account the newly created types of sex based offences, and the new positive duty to eliminate, as far as possible, this type of unlawful sex based conduct.

Step Two: Remind employees of those expectations

Employers should communicate with their employees prior to the workplace Christmas function, and remind employees of the relevant policies and expectations. Employers should also remind attending employees that disciplinary action may be taken if these policies are breached.

Step Three: Plan ahead

Employers must meet their workplace health and safety obligations, even at work functions.

Where alcohol is being served at the function, employers should ensure that there is sufficient food and non-alcoholic beverages available to attendees.

Employers should be very cautious in providing open ended bar tabs, or making excessive amounts of alcohol available to attendees.  It is important that where alcohol is being consumed, there is a nominated (senior) person who will supervise the consumption of alcohol, and to ensure that risks do not arise as a result of excessive consumption.

It is also important to set clear start and finish times for the workplace Christmas party and that employees are reminded that if they choose to continue socialising after the work function, then that should occur at a different venue, and that it will be an activity that is independent of the workplace function itself. Employers should also consider pre-arranging travel arrangements for employees to emphasise the conclusion of the event, and to ensure employees return home safely.  This may include arranging taxi vouchers (or similar).

Step Four: Be a role model

Leaders within the business should model correct behaviour from the “top down”. Owners, managers and supervisors should ensure that their behaviour is meeting a high standard during the workplace function, including ensuring that they are complying with the relevant workplace policies.

Step Five: If a complaint is made, be proactive

If concerns or complaints about alleged conduct at the Christmas party are raised (either during or after the event), employers should be proactive in addressing those concerns or complaints, and where appropriate seek legal advice.

Unfortunate lessons learned from previous cases

The following unfair dismissal cases provide practical reminders of the types of situations that can arise during workplace functions, and provide some insight into the Fair Work Commission’s (‘FWC’) thoughts about employer obligations at workplace functions:

McDaid v Future Engineering and Communication Pty Ltd

The employer had arranged a day of activities, followed by a party at the office in an area of the office which had a swimming pool. At the party, there was an unlimited amount of alcohol available to employees, who had already been consuming alcohol throughout the day.

In this case, Mr McDaid became inebriated and started behaving aggressively towards another staff member, including throwing him into the pool fully clothed.

The employee then refused to leave the premises when directed to do so by the General Manager. The employee then initiated a fight with the General Manager.

Subsequently, the senior employee was dismissed and made an unfair dismissal application.

Although the employee’s unfair dismissal claim in this case was ultimately dismissed, the  Commissioner commented that “an employer that provides alcohol at a work function and takes no steps to ensure it is consumed responsibly may be culpable for events attributable to the consumption of alcohol…”, but the Commissioner also noted that employees who drink will also be responsible for their actions, and that alcohol consumption is not an excuse for misbehaviour.

John Keron v Westpac Banking Corporation

In this case, Westpac had arranged an optional social event at a pub following a compulsory workshop at another location. For two and a half hours, the Westpac staff who attended the social event were provided with unlimited free alcohol.

Later in the evening, well after the closing of the event itself, but still at the pub venue, Mr Keron was alleged to have indecently assaulted a female staff member. Then, when the employees left the pub, Mr Keron was alleged to have verbally harassed another female employee. Westpac investigated the incidents and subsequently dismissed Mr Keron.

Keron challenged the dismissal on the basis that the incidents happened hours after the work-event finished.

The Commission found that the assault incident had a sufficient connection to Mr Keron’s employment, and despite employee attendance at the social event being optional. Notably, the FWC considered that because the employees remained in the same venue, and within the same group of people, and even though the organised work event ended hours earlier, the event remained a ‘work-related event’.

However, the FWC accepted the employee’s argument on the verbal assault incident, finding that it was not sufficiently connected to the employment given both employees had travelled to various venues after the social event ended, and Mr Keron and the second female employee were not previously known to each other.

Mr Keron’s unfair dismissal application was ultimately dismissed, but Deputy President Binet was quite scathing of Westpac in relation to the organisation of the social function, stating:

“[273] At that pub Westpac provided its employees with apparently unrestricted access to alcohol for more than two hours. Senior management did not remain at the function to ensure that its employees safely departed the venue nor was provision made to ensure intoxicated employees could get home safely.

…

[275] If Westpac are seriously committed to these principles Westpac should give consideration to whether the location they chose for networking events is one which all employees feel comfortable attending. They should also give consideration to whether the service of alcohol is necessary or even an appropriate element of work related events given the poor judgement often associated with the consumption of alcohol. If alcohol is a necessary element of the event Westpac should ensure that its employees are safe during the course of the event, that there is a clear conclusion to the event and that the safe departure of employees is facilitated.”

Key takeaways

Employers should take the chance to celebrate the end of the year with their staff.  However, it is clear that if proper precautions are not put in place, those celebrations can come with significant risk.  Aitken Legal encourages employers to take these risks seriously, and implement the measures outlined in this Update to ensure that those celebrations are memorable for all the right reasons.

If you have any questions about how to manage, mitigate and eliminate risks in your workplace, please contact our specialist lawyers at Aitken Legal.