End of year parties present one of the most difficult challenges
for employers in firstly minimising risks of liability for the acts
of their employees and secondly taking appropriate disciplinary
measures for misbehaving employees.
Explaining Acceptable Conduct to Employees
The most important step in firstly avoiding any incidents at an
end of year party and secondly minimising the risk of being held
vicariously liable for the acts of an employee, is to clearly
explain to the employees what is acceptable conduct. This is
because the legislation allows for an employer to avoid liability
for the acts of an employee where they have taken reasonable steps
to prevent the incident.
There can be a variety of steps the employer can take to meet
this standard. The primary step would be for the employer to have a
clear workplace policy dealing with sexual harassment and/or
discrimination. The employer should hold training seminars on the
policy and require all employees to attend and sign an
acknowledgement that they understand:
That they are bound by the policy; and
The consequences of breaching the policy.
There is a tendency for such training sessions to be dealt with
in a cursory fashion. Employers will need to engage in a meaningful
discussion with the employees on the policy to ensure that they
fully understand their obligations.
In explaining what is acceptable conduct to employees, employers
should pay particular attention to the following matters:
Comments or conduct of a sexual nature are clearly
inappropriate and can be found to be unlawful under the Sex
Discrimination Act 1984 (Cth.). Although sexual harassment requires
that such comments or conduct is unwelcome, it is most likely that
the person being harassed will not voice their concerns until after
the party. This is especially the case in relation to
comments/conduct between people in a power relationship (i.e. a
manager and a staff member) where the staff member may not voice
their objections for fear of repercussions.
Racist comments are similarly inappropriate and unlawful under
the Racial Discrimination Act 1975.
Controlling the Party
Although training employees on what is acceptable conduct is
particularly helpful, there is unfortunately no single way for
employers to ensure that all employees will behave appropriately at
an end of year party. This is especially so given the likely
presence of alcohol.
In these circumstances, the most viable option for employers is
to seek to obtain control. Such control may be obtained by:
Limiting the amount of available alcohol where the party is
held in-house or alternatively setting an appropriate tab limit
where the party is externally held.
Looking out for clearly intoxicated people who are getting out
of control and immediately arranging for a taxi or transport to
take them home.
Structuring the events for the party and thereby reducing the
amount of alcohol consumption.
Taking Appropriate Disciplinary Action
In the event that an employee has misbehaved and engaged in
either sexual harassment, racial discrimination or other unlawful
activity, the employer will need to take the complaint seriously
and have in a place a process of dealing with the complaint. This
will involve conducting a thorough investigation into the matter
whilst the misbehaving employee is suspended without pay pending
the findings of the investigation.
It can be difficult for an employer to conduct such
investigations where the complainant is reluctant to formalise
their complaint. However, the employer may conduct an investigation
where there are third party witnesses who are willing to give
statements. After taking statements of all involved and you come to
the view that it is more likely than not that the incident
occurred, it is prudent to take disciplinary action against the
individual concerned which may include termination of
Although the misbehaviour will need to be in connection with the
employment relationship, it can almost always be assumed that an
incident occurring at an end of year work party will satisfy this
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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