Australia: Tis The Season To Be Behaving Badly

Key Point

  • Prudent employers ought to implement steps and measures to prevent bad behaviour in the festive season.

As the silly season approaches it is important for employers to once again take stock of the potential hazards posed by the Christmas party, annual dinner and other work-sponsored functions.

While no doubt end-of-year celebrations might give rise to an air of light-heartedness and frivolity, it should not be forgotten that such celebrations remain work-related and, therefore, attract the usual workplace sanctions when there is a breach of an employer’s workplace policies on sexual harassment, discrimination and workplace bullying. It is also certainly clear that such sanctions may include the termination of the employment.

What is not so unequivocal, however, is whether a decision made by the employer to terminate the employment will always be upheld by an industrial tribunal. For example, decisions by employers to terminate the employment in the following situations have not always been found to be warranted or fair in the circumstances:

  • After consuming alcohol at a Christmas function organised by the employer, an employee performed a party trick which involved exposing himself. The employee was encouraged by other partygoers to carry out the trick again, which he did, so that it could be photographed by another employee. Both employees were terminated from their employment.
  • At a Christmas function, an employee became intoxicated and tried to hit the general manager of the company. The employee then was asked to leave the vicinity of where the incident had happened, although he then returned a short time later. The employee was subsequently evicted from the venue.
  • An employee who was extremely intoxicated, while at a Christmas party, made racial taunts at another employee. The taunts were also accompanied by threats.
  • At a work-sponsored conference where employees stayed overnight at employer-paid for accommodation, an employee stood outside the hotel door of a female colleague calling out to her with profanities. The employee had consumed alcohol that evening.
  • After the formal conclusion of a Christmas party which took place at the company's premises, a probationary employee was sexually propositioned by her immediate supervisor. The propositions were rejected, but the manager nonetheless touched the employee's breasts and other parts of her body. The manager told the employee that he would have to give her an unfavourable report about her work performance or terminate the employment.
  • Again at a Christmas work party, an employee had slurred speech, stumbled around, was loud and obnoxious, engaged in flirtatious behaviour, revealed her undergarments and exposed a tattoo near the groin area.

Issues To Consider

More so, a review of cases in the area indicate that it is difficult to predict with precision whether an industrial tribunal will uphold an employer's decision to terminate the employment - even where the employer holds a stringent view about the conduct which gave rise to the termination.

Nonetheless, it is clear that such tribunals accept that inappropriate conduct at work-related functions –even where the conduct takes place outside of the usual place of work – could attract workplace sanctions. The question, however, is whether in all the circumstances termination of the employment is the most appropriate course of action.

Accordingly, factors which an industrial tribunal might also have regard to include:

  • Whether the conduct is a "once-off" and out of character for the offending employee.
  • Whether the conduct is so heinous that it left the employer no alternative but to end the employment or whether some lesser sanction should have applied.
  • Whether different outcomes were afforded to other employees engaged in similar conduct.
  • Whether the offending employee has had a long period of service.
  • Whether the provision of alcohol (and how it was regulated) by the employer, and an employee's consumption, should be taken into account as a mitigating factor.
  • Whether there are appropriate workplace policies and procedures in place which deal with the particular inappropriate behaviour in question and the employee's awareness of such policies and procedures.
  • Was there in fact a relevant breach of the employer's policies having regard to the conduct.
  • Whether the conduct has a sufficient connection to the employment or whether it is too remote and more correctly conduct of a private behaviour and beyond the realm of any employer's workplace sanctions.
  • Whether procedural fairness was afforded to the offending employee in respect of any investigation into the conduct involved.

Managing Legal Risk

In the industrial context, the challenge for employers is applying appropriate workplace sanctions while ensuring that it does not do something which could be regarded as condoning bad behaviour.

Prudent employers recognise that part of meeting this challenge lies in the implementation of steps and measures to prevent bad behaviour from occurring. They also recognise that potential legal risks arising from bad behaviour during the party season need to be managed from a range of perspectives, not just the industrial perspective.

Therefore, in the anti-discrimination framework, an employer may be held vicariously liable for the sexual harassment of its employees where it fails to prevent and/or respond to such behaviours. Similarly, an employer's failure to address the welfare of any staff who might be the subject of Christmas workplace pranks resulting in injury could be the subject of a prosecution by an OHS authority for allowing workplace bullying.

Therefore, in the lead up to the festive season prudent employers are ensuring that at least the following things are on the "wish list" in time for end of year celebrations:

  • Having sound and up to date policies and procedures in place that address sexual harassment, discrimination and workplace bullying.
  • Having those policies and procedures clearly articulate what is appropriate and what is not appropriate behaviour.
  • That the policies and procedures are clear in their scope and application; that is, it specifically extends to all work-related activities and activities which have a connection to the employment such as the Christmas party and other work-sponsored functions.
  • All staff are aware of those policies and procedures, including the consequences of any breach. In this regard, a reminder to all staff about the policies and procedures would be timely and/or accompanied with staff training.
  • That the policies and procedures provide for a process whereby staff can raise concerns and those concerns are dealt with expediently and confidentially. The policies and procedures also provide for procedural fairness to all parties.
  • Staff are informed of a clear start and finish time in relation to upcoming work-sponsored functions such as the Christmas party so that boundaries are clear.
  • The principles of Responsible Service of Alcohol are applied at work-sponsored functions.
  • Managers understand that they need to and do model appropriate conduct consistent with the workplace policies.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.