Australia: The 12 myths of Christmas

It is that time of year again: time to deck the halls, eat, drink and be merry. However, it's also time for employers to think about the legal risks that can arise during this period and mitigate the risk of a HR hangover in the new year.

Here we discuss 12 common myths and misunderstandings which arise in Australian workplaces during the festive season, and consider how employers can avoid a new year filled with managing employee misconduct and legal claims.

MYTH #1 - I CAN DIRECT AN EMPLOYEE TO TAKE LEAVE WHENEVER I WANT

Most people are happy to take annual leave around the festive season. However, employers should carefully consider the basis for any direction to take annual leave.

For employees covered by modern awards or enterprise agreements made under the Fair Work Act 2009 (FW Act), employers should first check whether and, if so, how the applicable instrument permits them to direct employees to take leave for any Christmas/New Year shut down.

For award/agreement-free employees, any direction to take annual leave must be 'reasonable'.1

MYTH #2 – EVERYBODY LOVES CHRISTMAS

With Christmas trees, tinsel and carols all around, it can be a common misconception that everyone celebrates Christmas. However, it is important to remember that for a range of reasons, including on religious and social grounds, Christmas is not celebrated by one and all. Employers should take steps to ensure that festivities and celebrations are inclusive and respectful.

MYTH #3 – IF IT DOESN'T HAPPEN IN THE OFFICE, IT DOESN'T COUNT

Employers and employees often believe that what happens outside of the office has no bearing on the employment relationship. However, in cases involving inappropriate conduct by employees and managers (e.g. sexual harassment), a broad definition of the 'workplace' will generally be applied. In recent cases, the definition of 'workplace' has included the pub across the road from the office (where harassment was first initiated in the office)2 and also the 'after party' following an office Christmas Party.

This means employers may be held vicariously liable for the conduct of their employees out of the office and/or outside of office hours. Accordingly, it is imperative that employers take steps to remind employees that the employer expects the same standard of conduct at work-related functions, as expected during normal working hours.

MYTH #4 – IT'S JUST COMMON SENSE, EVERYBODY KNOWS WHAT IS APPROPRIATE AND WHAT ISN'T

Unfortunately, recent cases have highlighted that some employees fail to understand what is appropriate conduct and what is inappropriate conduct.

Examples of conduct that has resulted in legal action include giving a colleague an unwanted Christmas kiss, and making comments at a work party such as "I am going to go home and dream about you tonight".

Such conduct may result from a lack of awareness about appropriate boundaries – for which the employer could be held responsible. For this reason, it is important that employees are provided with information and training which clearly identifies the expected standards of behaviour and provides examples of unacceptable behaviour. Employees should be reminded of these standards during the festive season.

MYTH #5 – WE WERE ALL JUST HAVING FUN, THE PERSON DID NOT MEAN ANY HARM

Often, an employee accused of inappropriate conduct will contend that their comments or conduct were 'just a bit of fun' and they did not mean to offend anyone. However, when it comes to discrimination, harassment and bullying cases, the motive/intentions of the offending person will be irrelevant.

An employer who turns a blind eye to conduct on the basis that it is 'just a bit of fun' and/or 'no harm was meant', not only exposes itself to potential legal liability but also risks the development of an undesirable workplace culture.

MYTH #6 – AN EMPLOYER CAN'T BE HELD RESPONSIBLE FOR EMPLOYEES WHO CAN'T HANDLE THEIR ALCOHOL

Alcohol is a frequent ingredient in Christmas related incidents and the resulting legal battles. Another theme that repeatedly arises in these matters is that the offending employee is often noticeably intoxicated BEFORE they engage in the inappropriate conduct.

An employer will not be able to avoid liability in connection with inappropriate conduct by an employee, simply on the basis that the employee was drunk. Therefore, employers need to consider what steps can be put in place to avoid matters getting out of hand. This can include:

  • Reminding employees prior to the function to recognise their limits when drinking alcohol;
  • Ensuring the venues where functions are held follow the responsible service of alcohol principles;
  • Ensuring that adequate food and non-alcoholic drinks are provided throughout the function;
  • Nominating senior company representatives to monitor behaviour at the function and ensuring they are equipped to respond to matters before they get out of hand.

MYTH #7 – WHAT HAPPENS AT THE AFTER PARTY, STAYS AT THE AFTER PARTY

Just because the conduct occurs at a venue or function that is not organised by the employer, there still may be a sufficient connection to the workplace. Therefore, an employer could be vicariously liable for the conduct of its employees and managers at after-parties.

When it comes to avoiding liability – prevention is often better than cure. Employers should be sure to make it clear that they do not endorse "kicking on" or after-parties. Further, supervisors and managers should be advised not to use company credit cards to fund 'after–party' bar tabs.

Employers should also focus on ensuring that employees have a plan to get home safely at the conclusion of the function, to avoid drink driving or other risks arising from isolated party venues.

MYTH #8 – I CAN'T BE HELD RESPONSIBLE FOR WHAT MY CLIENTS DO

Employers should assume that attendance at client functions will be treated no differently to attendance at any other work-related function. Therefore, it is important that employees are aware of the standards of behaviour expected at client functions.

If an employee makes a complaint about inappropriate conduct by a client at a work-function, the employer must take steps to investigate that complaint and carefully consider how it will manage the outcome of such an investigation.

MYTH #9 – FACEBOOK IS YOUR FRIEND

Memories of the fun had the night before may be visible to the world the next day (or indeed that night) through Facebook, Instagram and other social media platforms. During Christmas functions, smart phone cameras are readily available for employees to take happy snaps. These snaps may relate to good humoured end of year antics (such as Christmas skits) but could also capture less savoury moments. The publication of such images on social media can damage personal and business brands.

To avoid these risks, employers should consider:

  • implementing social media policies for social events such as 'unplugged' Christmas parties, where only the business's marketing team and/or HR team take photographs;
  • reminding employees that photographs of work related events should reflect the standards of behaviour and the brand that the company wants to project; or
  • advising supervisors and managers to not be afraid to intervene to stop their colleagues from becoming an 'internet sensation'.

MYTH #10 – UNLESS SOMEONE MAKES A FORMAL COMPLAINT, THERE IS NO NEED TO INVESTIGATE

Depending on the nature of the conduct, it may be necessary for an employer to investigate the conduct and, if appropriate, discipline the employee(s) involved, even if no other employees complain about the conduct.

If an employer is informally advised of inappropriate conduct, it should consider whether that conduct could be symptomatic of a broader workplace issue. If the conduct is not addressed at the outset, it could result in a bigger issue down the track. Additionally, it is important for employers to be aware of and consider potential OHS liability that could arise, for example, from failing to investigate a bullying claim.

MYTH #11 – WE CAN WAIT UNTIL THE NEW YEAR TO DEAL WITH IT

Delaying the investigation of a complaint regarding alleged inappropriate conduct at a Christmas function until the new year will most likely only compound the problem for an employer.

If a complaint is made, it is important that the employer makes a prompt assessment as to whether or not an investigation is required. If an investigation is required, the employer should promptly put in place a process to commence that investigation. It may also be necessary to take some immediate steps, such as offering counselling services, putting in place alternative working arrangements for the people involved or standing down employees during the investigation.

The investigation process may be impacted by employee leave over the Christmas period, and those involved in the investigation should be advised of the process during that period and kept updated on the timeframe for the investigation.

MYTH #12 – WORKPLACE RELATIONS LAWYERS TAKE THE FUN OUT OF CHRISTMAS

After reading all of the above, you are probably wondering whether Workplace Relations lawyers want to take the fun out of Christmas. However, it is important to remember that like all workplace matters, managing employee behaviour is a balancing act that can be achieved without sucking all of the fun out of the 'silly season'.

Office Christmas parties are a fantastic opportunity for employees to relax, laugh, socialise and celebrate their achievements throughout the year. So we encourage you to remind your employees to be festive, not foolish, and we hope that your Christmas parties are happy and safe celebrations.

Footnotes

1 See further: http://www.corrs.com.au/publications/corrs-in-brief/christmas-is-coming-please-take-leave/

2 See: http://www.corrs.com.au/publications/corrs-in-brief/full-federal-court-adopts-a-broad-approach-to-the-concept-of-a-workplace/

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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