By Annie Smeaton (Partner) and Belinda Winter (Partner) of Cooper Grace Ward.
While fun and enjoyable for most, work Christmas parties can turn into HR nightmares. Here is what you need to do to ensure that you and your staff are well prepared.
The ‘silly season’ is upon us but it is important that employers and employees are reminded that this is no excuse to disregard normal safe work practices. While for most the work Christmas party is a harmless get-together and celebration amongst colleagues, it can turn into an alcohol fuelled nightmare for HR managers.
Employers should be aware that in most cases the duty of care owed to employees will extend to the work Christmas party and Christmas festivities.
Now is the time to ensure that all staff policies and training are up to date and that staff are aware that WH&S and behavioural standards apply to employee conduct at work functions conducted outside the workplace. In the recent case of Youngblutt v Workers’ Compensation Regulator  QIRC 100, an employer was held liable for a psychiatric injury arising from sexual harassment at a work social club Christmas party. In Drake & Bird v BHP Coal Pty Ltd  FWC 7444 , a worker’s dismissal was upheld after he punched a supervisor on the nose at a work related Christmas pyjama party.
For employers, ensuring a safe, fun event for staff can be broken down into three key phases:
- reviewing workplace policies and ensuring staff are aware of and trained in these policies regularly (usually every 2 years)
- planning suitable Christmas events
- appropriately dealing with any complaints or issues.
An employer’s greatest tool in dealing with inappropriate behaviour arising out of work Christmas parties is ensuring that workplace policies, particularly relating to bullying and harassment, social media and drug and alcohol consumption, are up to date and that all staff are aware of these policies.
In a recent eSafe newsletter from Workplace Health and Safety Queensland, the regulator noted that:
Staff behaviour expectations do not change at a work function whether alcohol is involved or not. Workplace harassment, bullying and even violence are serious issues and losing inhibitions after a little too much cheer is no excuse.
Complaints are often made after work functions, especially when photos or comments are posted on social media during or after the event. It is wise to review and send out your social media policy before the celebrations start.
When attending a work Christmas party, employers can still be held liable for the conduct and safety of their workers. Ensuring that your business’s WH&S policies are up to date also forms part of the requirement that employers take reasonable steps to ensure the safety of their workers, even when not at work or in standard business hours.
Many issues arising from the work Christmas party can be avoided by appropriate event planning. Binge drinking, inappropriate activities and poor safety protocols are the main contributors to inexcusable behaviour occurring.
When planning the work Christmas party, employers should ensure that:
- an appropriate venue is chosen for planned activities
- alcohol is responsibly served
- underage staff are not served alcohol
- managers and senior staff set a good example
- food and non-alcoholic drinks are provided
- strict start and finish times are set
- transport to and from the venue is readily available.
Dealing with poor behaviour
When poor behaviour is displayed at a work Christmas party, it can be a kneejerk reaction for employers to immediately dismiss an employee. However, this can land the employer on the Fair Work Commission’s naughty list, as was the case in Keenan v Leighton Boral Amey Joint Venture  FWC 3156.
In this case, Mr Keenan was dismissed by LBAJV following drunken misconduct at the work Christmas party. The event had been organised and paid for by LBAJV.
During the event, Mr Keenan told a company director to ’f**k off’’, issued the same directive to a senior project manager, asked a much younger female colleague for her phone number and said to another: ‘Who the f**k are you? What do you even do here?’.
After the official function ended Mr Keenan, along with other members of staff, continued to the venue’s public bar where he described one female colleague as a ‘b*tch’ and kissed another on the mouth, saying that he would go home and dream about her.
The FWC heard that Mr Keenan consumed 13 drinks on the night. The allegations were put to Mr Keenan at a meeting with HR, after which he was subsequently dismissed. He brought an unfair dismissal claim and sought reinstatement.
The FWC held that Mr Keenan had been unfairly dismissed. While the conduct that occurred at the venue’s public bar was found to have breached the Sex Discrimination Act 1984 (Cth) and therefore would warrant dismissal had LBAJV been liable for the conduct, the FWC found that the incident was not sufficiently connected to Mr Keenan’s employment, as the social interaction at the upstairs bar was not ‘in any sense organised, authorised, proposed or induced’ by the employer as it was essentially a private setting.
The FWC, in relation to Mr Keenan’s conduct at the Christmas party, found that, while unpleasant, it was not sufficiently serious enough to warrant dismissal. In making this decision, the FWC noted that the full substance of the allegation was not adequately put to Mr Keenan and he therefore did not have a proper opportunity to respond.
In making the finding of unfair dismissal, the FWC took into account that the behaviour was as a result of his intoxication and stated 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. If alcohol is supplied in such a manner it becomes entirely predictable that some individuals will consume an excessive amount and behave inappropriately.
It also took into consideration Mr Keenan’s good work record and that there were substantial disciplinary alternatives available to the employer other than dismissal.
How can employers prepare?
In view of the above cases, it is vitally important that employers are prepared for the festive season. Employers should review their current policies and ensure that all staff receive regular training in, and know where to find, company policies. Employers should also ensure that workplace Christmas parties are conducted in line with company values, policies and procedures. Any breaches of policy or employee misconduct should be dealt with swiftly , ensuring procedural fairness is provided to each party at all times.
Cooper Grace Ward disclaimer: This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
This article was originally published on the Cooper Grace Ward website and has been reproduced with permission.