Australia: Christmas party hijinks: a guide for employers

Last Updated: 22 December 2015
Article by Emily Dempster

It's that time of year again when Christmas cheer can very quickly turn to Christmas jeer. Here's a guide to help you avoid the pitfalls and be fully prepared for any possible 'Christmas shenanigans'.

What you need to know:

  • How to develop a 'Preventative Steps' checklist.
  • Why you should clearly establish and communicate to all employees, the standards and expectations of your work functions prior to the event, and manage these during the event.
  • Why you should ensure that your relevant policies (e.g. discrimination, sexual harassment, bullying, alcohol and drug use etc.) are up-to-date and made available, accessible and reminded to employees.
  • Why it is important to fully understand when and how you can implement your 'dismissal' procedures.

A constant theme in December, alongside the steady flow of Christmas functions and networking drinks, is the influx of articles from employment lawyers warning you of the dangers of the 'good old' work Christmas party.

If you have read these articles (either recently or in the Decembers of Christmas past) you would presumably be aware that employers can be held to be vicariously liable for the actions of their employees at work functions. In fact, you are probably well aware of the particulars of the leading cases that are rolled out each year. For that reason, we are taking a different approach with our article.

What should you do when the boundaries are tested?

What we think is probably a more prevalent concern for you in relation to Christmas function antics, is to be able to appropriately deal with the employees concerned. Failure to do so could lead to workplace discord which could then lead to much bigger issues across the organisation. This being the case, you understandably want to be in a position to be able to take appropriate disciplinary action, up to and including dismissal, should any employee test the limits at a work function.

At the outset, we must say that unfortunately, there is no 'foolproof' course of action that you can take to entirely prevent employees from engaging in inappropriate behaviour at work functions. In fact, no matter how well prepared you may be and how many measures you may put in place, at least one employee will invariably find a way to 'test' – or in some cases, demolish – the boundaries of acceptable conduct leading to issues that you have to deal with the following Monday.

So, if you accept that you are likely to encounter an issue of some sort at a work function involving inappropriate employee behaviour, it is important for you to feel assured that you can appropriately discipline the employee. This may sound a little trite, however, when you think about it, there is no doubt that the boundaries of a work related function will ordinarily be less stringent than the boundaries of the workplace. For example, if an employee were to turn up to work intoxicated, an employer would, in most cases, be entitled to dismiss the employee. However, if an employee were to become intoxicated at a work function where the employer is providing free alcohol, dismissal will not necessarily be justified.

When things can go terribly wrong

One employer certainly encountered this exact issue earlier this year when it was found to have unfairly dismissed an employee who sexually harassed his colleagues and told his bosses to "f*** off" at the employer's 2014 Christmas party.

This particular employee had had a couple of pre-drinks prior to the function and then helped himself to about eight beers from an esky that was freely accessible to all attendees at the function. In his inebriated state, the employee told a company director and a senior project manager to "f*** off" and he rudely asked a junior colleague "who the f*** are you? What do you even do here?"

After the function ended (and yes, it did have a clear end time), he attended a public bar with some of his colleagues where he:

  • upset a colleague when he told her that he used to think she was a "stuck up bi***";
  • kissed another colleague on the mouth without her invitation and/or permission and then told her he was going to go home and dream about her that night; and
  • told another colleague that his mission that night was to find out what colour knickers she had on.

After multiple complaints were made about the employee's conduct, he was subsequently dismissed when he returned to work from annual leave in January.

Why the FWC Decision has not favoured the Employer

So, where did it all go wrong for the employer? Well, for starters, Vice President Hatcher, from the Fair Work Commission, said that whilst the conduct that the employee engaged in after the function would constitute a valid reason for dismissal, it didn't take place at the actual work function and therefore, there was not the necessary connection to work.

Additionally, VP Hatcher found that the employee's conduct was the result of his intoxication at the work function and that this was a 'mitigating factor'. In particular, VP Watson found that the employer did not serve alcohol responsibly as it was unlimited and freely accessible and that this was an exacerbating factor and it was contradictory in the circumstances for the employer to require compliance with its usual standards of behaviour at the function. In fact, VP Watson said that in the circumstances, the employer should have predicted that some individuals would consume excessive amounts of alcohol and behave inappropriately. VP Hatcher also highlighted a procedural failure in the way that the employer implemented the dismissal.

Why the employer must take preventative steps

Further, it appears to us that the employer had not allocated a designated "sober" person to keep an eye on employees as it should have been readily apparent to the "sober" person that the employee was excessively intoxicated.

Further, despite the employee conducting himself inappropriately in front of senior employees at the work function (i.e. the company director), it appears that the company director did not take any action to address the conduct and stop the employee from drinking.

If the employer had taken these two simple steps, it may well have put a stop to the employee's conduct prior to it escalating to sexual harassment after the function. It also may have provided the employer with a valid reason for the dismissal if the employee ignored any directions to cease drinking and/or leave the function.

So, as you can see, not even atrocious conduct will necessarily justify dismissal if the employer has not taken appropriate steps to prevent such conduct from occurring.

A 'Preventative Steps' Checklist

As to the preventative steps that you should take:

  • Remind employees that as the function is a work related event, they are expected to comply with the workplace policies and distribute the relevant policies (discrimination, sexual harassment, bullying, alcohol and drug use etc).
  • Warn employees about the consequences of unacceptable behaviour.
  • Specify clear start and end times of the function and ensure alcohol is not served after the end time.
  • Serve alcohol responsibly and ensure that non-alcoholic drinks and food are available.
  • Ensure that there is a designated "sober" person who is keeping an eye on the revelries and taking appropriate action should any issues ensue (this person is usually the HR Manager – sorry!).
  • Ensure that safe transportation home is available and advise employees that they should not drive if they are intending on drinking.
  • If an employee is acting up at a work function, you should nip it in the bud immediately.

As discussed above, you cannot completely eliminate any employee misconduct at a work function. However, if you take the above steps you should be well placed to be able to appropriately discipline any employee who engages in any such conduct.

https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC3156.htm

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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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