This paper was written following an interactive role play seminar that Kott Gunning presented to clients in order to prepare them for Christmas parties and other social functions that they may attend. Entitled "Surviving the Silly Season", the seminar addressed the potential liability for employers, and personal liability for managers, directors and officers of employers arising under the Occupational Safety and Health Act 1984.
The role plays were presented by Kott Gunning's Employment Law and Workplace Safety Team, with Barrister Maria Saraceni providing commentary and discussion on each scenario that was presented. The practical tips and tricks discussed at the seminar are addressed within this paper.
An employer owes a general overarching duty of care to provide a safe system of work, to promote the safety and health of all persons at work, and to prevent, so far as is practicable, exposure to hazards in the workplace.1 It can be said that, in general terms, the majority of employers are sufficiently aware of their obligations arising under the Occupational Safety and Health Act 1984 (WA) (the Act) with respect to physical safety. This is particularly the case in industries such as mining, oil and gas and construction, where work is traditionally more "physical" than in professional services organisations.
However more subtle hazards are commonly ignored, or are not easily identified, when it comes to physical and mental health issues arising in professional services organisations. In particular, during the November and December period, where festive social functions start to dominate the working week, potential hazards and risks are easily overlooked by employers and others who have significant responsibilities arising under the Act.
Although the festive season is traditionally a time for employers and employees to let their hair down and celebrate the conclusion of a successful year, it is necessary to address how the duties arising under the Act may, in many circumstances, be extended to include functions celebrating Christmas, New Year and the holiday period.
Extension of the definition of a "workplace"
Traditionally, and pursuant to 'section 3' of the Act, a workplace means a place – whether or not in an aircraft, ship, vehicle, building, or other structure – where employees or self-employed persons work or are likely to be in the course of their work. In most professional services firms, the concept of "the workplace" extends to an office building, and perhaps for the more liberal-minded organisations, an employee's' home office (which may be a properly fitted out room or just a part of the home where work is usually carried out).
However, in Whittingham v Ascot Air Conditioning Pty Ltd  NSWWCCPD the definition of the "workplace" was extended to include the area where Ascot's Christmas party was being hosted. In this instance, the Christmas party was held on the employer's premises in the undercroft. Although the liability of the employer to pay workers compensation pursuant to the Workers Compensation Act 1974 usually arises where the accident or injury has occurred from the general circumstances of the injured employee's employment, the obligations of the employer pursuant to 'section 3' of the Act may go further to include "work related" functions.
The definition of the "workplace" would ordinarily encompass any area where the employee is required to attend for work related reasons, and can therefore be easily extended to any area outside the office space where work is being performed. Employer obligations arising under the Act can therefore extend to the local park or recreation centre, the bar across the street and potentially even a nightclub.
The "workplace" would ordinarily encompass any area where the employee is required to attend for work related reasons. Some practical tips on defining the boundaries of the workplace at social functions include:
- defining a start and finish time for the social function;
- allowing managers, directors or the employer them self to only pay for food and beverage during the designated function times; and
- encouraging staff to move to a different venue at the conclusion of the event so as to create a separation between the networking event and the employee's own social interactions.
Drugs and alcohol
The consumption of drugs (both legal and illegal) and alcohol affects a person's ability to work safely. It may affect the employee's ability to exercise judgment, coordination, motor control, concentration and alertness. This may cause a range of problems for the employer including injury to an employee, damage to plant or equipment, and even loss of life.
Where an employee's capacity to work safely is (or may be) impaired by drugs or alcohol, the employer should ensure that the employee does not place him or herself at risk and does not put other employees' health and safety at risk.
1.1 Employer's obligations
Employers have obligations in relation to their duty of care for their employees. These are listed at 'section 19' of the Act and include:
- providing a workplace and safe system of work so workers are not exposed to hazards;
- providing employees with information, instruction, training and supervision to enable them to work in a safe manner; and
- consulting and cooperating with employees and health and safety representatives in matters related to health and safety at work.2
Employers may be held legally responsible for acts committed by their employees, unless the employer has done everything that is reasonably practicable to ensure the health and safety of the employees.3The factors that are considered in determining whether the employer has done everything "reasonably practicable" to ensure health and safety include:
- the severity of any potential injury or harm to health, and the degree of "risk" of it occurring;
- the state of knowledge about the injury or harm, the risk of that injury or harm occurring and the means of removing or mitigating the risk; and
- the availability, suitability and cost of the means of removing or mitigating the risk.4
In addition, employers have a general "duty of care" obligation to ensure that, as far as practicable, workers are not exposed to hazards and risks, including those that could arise from workers being impaired by drugs and/or alcohol. A director, manager or officer of an employer will be unlikely to avoid liability if he or she were to feign ignorance or turn a blind eye to the conduct of employees at social functions in the workplace.
The personal liability of an employee does not absolve the liability of the employer. The employer must do what is reasonably practicable from a safety point of view (although morally, the employer may feel an obligation to go over and above that standard).
Directors, managers, secretaries5 and officers of an employer may also be personally liable for breaches, including acts which may not be committed during the course of "normal work". Personal liability may be imposed where an offence is committed in circumstances where the individual "consented or connived" the offence or where the offence was attributable to any neglect on the part of that individual.
Many companies close down for a number of weeks over the Christmas and New Year period, with the close to the working year being highlighted by a Christmas party. An employer's obligation to ensure the health and safety of their employees can extend over this break. For example, if an incident happens at the Christmas party and the employee is not provided any support by the company for weeks until work commences again in the New Year.
1.2 Employee's obligations
Employees also have obligations under the Act. These are listed at 'section 20' and include the employee having an obligation to take reasonable care to:
- ensure his or her own safety at work;
- avoid adversely affecting the safety or health of any other person at work;
- report any situation at their workplace to the employer that the employee believes could constitute a hazard; and
- report any injury or harm to health which arises in course of or in connection with his or her work.
This means that employees have an obligation to, for example, remain fit for work. Being impaired by drugs and/or alcohol may be a hazard or create risks for co-workers and other people at the workplace.6 Where an employee is affected by drugs or alcohol, that employee or another employee should bring it to the attention of the employer.
1.3 Risk management and practical measures
Whilst ideally employees will not be under the influence of drugs and/or alcohol while they are at a workplace, this may be difficult to enforce depending on the culture of the company. For example, many companies engage in traditions of "Friday night drinks", client or customer networking and Christmas or end-of-year functions. Where drugs and/or alcohol are likely to be consumed, the situation should be assessed ahead of time and measures taken to eliminate or reduce the likelihood of any injury or harm occurring to the employee affected by drugs and/or alcohol, other employees or a third party.
This can be done by, and in fact is a requirement of the Occupational Safety and Health Regulations 1996 (WA) (the Regulations), undertaking and implementing a risk management process. The three step process is stated at 'regulation 3.1' of the Regulations and requires an employer to:
- identify hazards within the workplace;
- assess the risk of injury or harm to a person resulting from each of those hazards; and
- consider how those risks may be reduced and implement control measures.
These three steps should be applied to the hazards associated with the use of drugs and alcohol and should extend past the period immediately after the employee consumes the drugs and/or alcohol, to include the effects of a "hangover".
When considering the three step process, it must be remembered that the hazards associated with drugs and alcohol may be greater in some workplaces than others, due to the nature of work that is being carried out. Similarly, the nature of one employee's position may be more likely to jeopardise the safety and health of others, than another employee's position. It is also important to identify the cultural and workplace factors that may contribute to risks from alcohol and drug use
Employers should ensure that the control measures that are developed are both communicated to all staff, as well as implemented (so that they are not just seen to be "a piece of paper stuck up on the wall"), in addition to being monitored and reviewed on an ongoing basis.
Examples of control measures that can be implemented to reduce the risk or injury or harm include:
- developing an alcohol and drugs policy which details your company's attitude towards consumption of drugs and/or alcohol in general and in certain situations such as work functions, as well as detailing procedures on how to reduce risk when people are affected by drugs and/or alcohol within the workplace;
- providing information and training to employees which includes the risks associated with the consumption of drugs and alcohol; and
- providing access to counselling.
1.4 Penalties for offences
If an employer breaches its obligations under the Act, the penalties that they can face are high. These penalties are listed at 'section 3A' of the Act and include maximum penalties of:
- for a first offence, a fine of $500,000; and
- for a subsequent offence, a fine of $625,000.
If a director or manager of an employer is found personally liable, that individual may face maximum penalties of:
- for a first offence, a fine of $250,000 and imprisonment for 2 years; and
- for a subsequent offence, a fine of $312,500 and imprisonment for 2 years.
It is worthwhile noting that a person found guilty of a breach of the Act will end up with a criminal record.
If an employee is found liable, that employee may face maximum penalties:
- for a first offence, a fine of $25,000; and
- for a subsequent offence, a fine of $31,250.
Sexual harassment includes unwelcome sexual conduct which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances.7 Sexual harassment does not need to be repeated or continuous. It can involve a single incident. It can occur during an employee's employment as well as during the selection and recruitment process.8 It can take numerous forms and may include:
- unwelcome physical touching, hugging or kissing;
- staring or leering at someone, or at parts of their body;
- suggestive comments or jokes;
- insults or taunts based on sex;
- sexually explicit pictures, e-mails or text messages; and
- intrusive questions about an employee's private life or body.9
1.5 Employer's obligations
As discussed above, employers may be held legally responsible for acts of sexual harassment committed by their employees (in addition to the offending employee being held personally liable), unless the employer has done everything that is reasonably practicable to ensure the health and safety of the employees.10
In addition to the obligations under the Act, employers also have a general duty of care to ensure they do not expose their employees to risks which could affect their health and safety.
An employer's obligation to prevent sexual harassment is enlivened not only at the normal place of work, but extends to whatever may be considered a "workplace". This means that an employer can be held liable for an incident of sexual harassment that occurs at a Christmas function, or at a bar.
1.6 Risk management and practical measures
Measures that an employer can take in advance to help prevent the occurrence of sexual harassment and limit their liability are:
- drafting and implementing a sexual harassment policy making it clear that sexual harassment in the workplace is unacceptable, and ensuring that the policy is communicated to employees, monitored and reviewed on a regular basis;
- providing regular training and information on sexual harassment to all employees;
- ensuring that appropriate behaviour is modelled by management; and
- taking appropriate action should sexual harassment occur.
It is also important that an employer considers the risk of sexual harassment occurring with respect to specific functions that companies host or attend. These functions may be considered to be a "workplace" and an employer has an obligation to ensure the health and safety of their employees. It is therefore important for the employer to assess the risk of sexual harassment occurring in those situations and put in place appropriate measures to address that risk.
If an allegation of sexual harassment is made, it is important for the employer to act quickly and appropriately. The Act requires employers to:
- investigate matters reported to them by employees;
- determine the action to be taken (if any); and
- notify the employee who made the report of the action to be taken.
An employer should know in advance the general approach and procedures they will use for dealing with complaints of sexual harassment. Here are some practical suggestions of the appropriate action that should be taken should sexual harassment occur in the workplace:
- encourage employees to lodge a formal complaint in the event sexual harassment occurs;
- do not ignore the complaint; address the complaint in a fair, timely and confidential manner;
- address the offending behaviour, require the offender to take responsibility for their actions and do not reward that type of behaviour;
- keep clear records; and
- provide employees with counselling or an Employee Assistance Program (EAP).
A worker is "bullied at work" if, while the worker is at work, an individual, or group of individuals, repeatedly behave unreasonably towards the worker, and that behaviour creates a risk to health and safety.11 The emphasis within the definition of bullying is on the systematic or repeated behaviour of the perpetrator, and hence bullying would not ordinarily arise out of a single occurrence or event.
1.7 Employer's obligations
Employers are responsible for ensuring a workplace is free from exposure to hazards and must take all steps that are reasonably practicable to provide a safe system of work.12 Exposure to bullying behaviour in the workplace may constitute regular exposure to a hazard where the behaviour may or is likely to affect the health and safety of the worker. Emphasis here is on the mental health and safety of the worker.
The wording within the definition of bullying suggests that the behaviour must occur "while the worker is at work" and commentary has been made to the effect that out-of-hours conduct is excluded. However, although this position has yet to be settled with the Court, any "work" undertaken outside of the usual working hours may be included in the event that the worker is still working. On that basis, attendance at Christmas functions, particularly mandated attendance could certainly be encapsulated by the definition of bullying.
1.8 Risk management and practical measures
Practical measures to manage risk arising from bullying behaviour are very similar to suggested measures to manage sexual harassment in the workplace and include:
- encouraging employees to lodge a formal complaint in the event that bullying occurs;
- not ignoring the complaint; addressing the complaint in a fair, timely and confidential manner;
- conducting an independent investigation and if so required, addressing the offending behaviour, requiring the offender to take responsibility for their actions and not rewarding that type of behaviour; and
- if necessary and if at all possible, separating the employee whilst at work from the offender during the investigation and recovery stages.
Kott Gunning Recommends
Of utmost importance in assessing whether an employer is able to survive the silly season is to query whether the employer has done everything reasonably practicable to provide a safe system of work, bearing in mind the extended definition of a workplace. The Kott Gunning Surviving the Silly Season Quiz deals with a number of all-too-common issues that arise. The quiz may assist you with your preparations for the silly season and other social functions that you may have in your schedules.
1 Section 19 Occupational Safety and Health Act 1984 (WA).
2 Guidance Note: Alcohol and Other Drugs at the Workplace Commission for Occupational Safety and Health, 2008, page 2.
3 'Section 19' Occupational Safety and Health Act 1984 (WA).
4 M R and R C Smith Pty Ltd T/As Ultra Tune (Osborne Park) v Wyatt [No 2]  WASCA 110 at .
5 i.e. the ASIC-registered secretary of a company.
6 Guidance Note: Alcohol and Other Drugs at the Workplace Commission for Occupational Safety and Health, 2008, page 2.
7 'Section 28A' Sex Discrimination Act 1984 (Cth).
8 'Section 28B(2)' Sex Discrimination Act 1984 (Cth).
10 'Section 19' Occupational Safety and Health Act 1984 (WA).
11 'Section 789FD' Fair Work Act 2009.
12 'Section 19' Occupational Safety and Health Act 1984.
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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