Alcohol and employment don't necessarily mix well. A few
beers and some inappropriate behaviour can lead to a serious legal
"hangover" for employers. But let's face it... not
many people celebrate a dry Christmas! By taking a few simple
precautions, such as revising sexual harassment and alcohol and
drug policies, employers can protect themselves against claims
arising from Christmas party antics and still put on the show of
Duty of care
It is now reasonably obvious to most that attendance at the work
Christmas party may be considered to be "in the course of
employment". Employers need to be aware that their duty to
ensure the health, safety and welfare of employees applies equally
at the Christmas party and may even extend to the
"after-party" for any employees with the stamina to
If employers do not meet their duty of care, then bullying and
sexual harassment, compensation, termination of employment and work
health and safety claims become major concerns when it comes to the
For example, sexual harassment claims frequently arise after
Christmas parties, where alcohol tends to make people a little
uninhibited. Employers risk being vicariously liable for the
actions of employees if they fail to take reasonable steps to
prevent conduct such as unwelcome touching, hugging or kissing;
unwanted sexual advances; suggestive comments or jokes; or
inappropriate Kris Kringle gifts. The list of potentially
inappropriate workplace conduct is a long one!
A good example of an employer being found vicariously liable for
sexual harassment is set out in the decision of Lee v Smith
& Ors. In this case, an employee was raped by a co-worker
following a dinner party. The employer was held liable on the basis
that the rape "was a culmination of a series of sexual
harassments that took place in the workplace". Similarly, in
the decision of Ewin v Vergara (No 3), the Court held that
inappropriate sexual conduct that took place in a taxi and at a
hotel was connected to employment on the basis that the behaviour
was part of a course of conduct that started at the workplace.
So what can employers do to make sure that issues such as sexual
harassment do not take the "ho ho ho" out of the silly
Our top ten tips for a safe and successful Christmas party
Remind staff about what is appropriate workplace behaviour and
that these standards apply even if the party occurs outside of
working hours and away from the office.
Review workplace policies on sexual harassment and alcohol and
drug use and ensure that employees are trained in their
Warn employees about the consequences of inappropriate
Set clear start and finish times and do not serve alcohol
beyond this time.
Encourage employees to know their own limitations when it comes
to alcohol consumption and ensure management lead by example.
Serve plenty of food and non-alcoholic drinks.
Ensure that the venue is close to safe transportation home and
advise employees that they should not drive if they intend to
Inspect the venue for possible hazards and make potential risk
areas out of bounds.
Appoint a senior employee to stay sober to oversee the
function, which may include taking appropriate action to address
escalating behaviour such as sending some people home or even
closing the bar.
Deal with all complaints promptly and properly.
No amount of Panadol will prevent a legal "hangover"
so it is crucial that employers carefully address the above matters
before pulling on the party hats.
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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The FWC upheld summary dismissal of a worker who tested positive for cannabis, despite being denied procedural fairness.
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