Australia: Tis The Season To Be Behaving Badly

Last Updated: 15 November 2007
Article by Joe Catanzariti, Millen Lo and Louisa Macphillamy

Most Read Contributor in Australia, November 2017

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.

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