Australia: Bah! Humbug! An employer's guide to the silly season - 30 November 2016

Last Updated: 4 December 2016
Article by Anna Hendry, Robert Tidbury and Andrew Tobin

It's the most wonderful time of the year according to the popular jingle by Andy Williams, but for many employers Christmas and Christmas parties are fraught with risk. In this alert, Senior Associate Anna Hendry and Partners Robert Tidbury and Andrew Tobin provide employers with hints and tips for an accident-free, claim-free festive season.

Injuries

We all know someone who has been injured at a work Christmas party, be it by exuberant dancing, excessive alcohol consumption or participating in a game or activity. Sometimes those injuries will be covered by your workers' compensation policy. The question is whether work was a significant contributing factor to the injury (under s 32 of the WCRA). As no work is generally being performed at a Christmas party, the answer to that question is found by applying the test in PVYW (Comcare v PVYW (2013) 250 CLR 246):

  • If the injury was caused by undertaking an activity, did the employer induce or encourage the worker to undertake that activity?
  • If the injury was caused by being present at a place, did the employer induce or encourage the worker to be present at that place?

If the injury was caused by participation in an activity, it is important to identify the specific activity being engaged in at the time of the injury. For instance, in Australian Leisure and Hospitality Group Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) & Campbell [2014] QIRC 105, the Queensland Industrial Relations Commission had to consider a claim for compensation made by the dependants of a worker who suffered fatal injuries when she dived into the Noosa River while attending her work Christmas party. The dependants' appeal was dismissed by the QIRC which found that the activity in question was not attendance at the Christmas party held at the Noosa River but the specific activity of diving into the river.

In organising your Christmas party you should consider exactly what activities you are encouraging workers to undertake. Christmas parties involving a planned or contemplated physical activity such as go karting or skirmish involve a real risk of injury and those injuries may fall within your workers' compensation policy.

Assaults

No one wants to think about the risk of a worker being assaulted at a work function but alcohol-fuelled assaults are commonplace and it is important for employers to consider their duty of care to workers in relation to the risk of assault by both members of the public and co-workers.

In Packer v Tall Ships Sailing Cruises Australia Pty Ltd [2014] QSC 212 the employer arranged a daytime Christmas party cruise for staff and their families. Another group on the cruise was using loud and colourful language and the plaintiff asked that group to be considerate of the families on the cruise on two occasions. On the second occasion he was punched in the face by an unidentified assailant. He alleged the employer ought to have identified the risk of assault by the boisterous conduct of that group and taken steps to ensure he was protected from that risk. The court found that there was no evidence that the employer knew of a risk of assault posed by that group and that its failure to identify and respond to that risk was not a breach of its duty of care.

Although the decision in Packer was in favour of the employer, the outcome might have been different had there been prior threats of violence made by the group towards the worker of which the employer was aware. In response to this risk, you should consider:

  • Holding your Christmas party at a closed venue or at a segregated section of the venue; and
  • Designating a couple of senior staff to remain sober and to oversee the Christmas party.

Those designated sober staff members should also keep an eye on behaviour within the party to minimise the risk of assault by co-workers. Workers should be reminded about the importance of not engaging in inappropriate behaviour before the party and warned that they will be asked to leave the party if they display inappropriate behaviour. The designated staff members should be ready to act at the first sign of aggressive or unruly behaviour or excessive alcohol consumption.

Bullying and Harassment

The lead up to the work Christmas party is also a good time to remind staff about your bullying and harassment policy. Alcohol can lower inhibitions and bring any underlying conflicts to the surface. Staff should be reminded of what conduct constitutes bullying and harassment; the sanctions that apply to such conduct, and; the procedure for reporting it. This reminder should be provided in writing.

Fundamentally, bullying is a safety matter and incidents of bullying between workers can come back to bite employers in a variety of ways.

Sexual harassment

The same considerations apply in relation to sexual harassment. The cases are full of examples of amorous misadventures at office parties leading to New Year litigation implicating not only the disaffected Romeo (or Juliette), but also their employer.

Staff should be reminded of what constitutes sexual harassment, about the sanctions and how to deal with aberrant behaviour.

Social Media

We all love a good Christmas party photo and no doubt there will be many so now is an excellent time to:

  • Consider whether your social media policy is adequate;
  • Consider whether your bullying, harassment and discrimination policy clearly extends to the use of social media by workers;
  • Remind workers about your social media policy.

In the aftermath of the Christmas party, you should also be careful about which photographs you publish on the company intranet or newsletter. That photo of Barry doing the robot is funny but the couple inadvertently caught kissing in the background might not find it so amusing.

A range of problems can present for employers resulting from overzealous, misguided or just plain nasty use by staff of social media. These include, for example, complaints about bullying or sexual harassment and complaints about breach of privacy.

One of the challenges for employers in dealing with complaints involving use (or misuse) of social media is distinguishing between conduct in which the employer has a legitimate interest, and; conduct which is so far removed from the workplace that the employer has no right to get involved.

A good social media policy will help to clarify that distinction.by explaining how use of social media intersects with your expectations in other areas, such as in relation to bullying and sexual harassment.

Practical Tips

Don't let your Christmas party hangover include a personal injury claim or inappropriate behaviour complaint:

  1. Be aware that injuries sustained while undertaking employer organised activities may result in a claim for workers' compensation and common law damages;
  2. You might also be dragged into other (potentially uninsured) civil disputation for aberrant behaviour which you could and should have managed but did not;
  3. Consider booking a private venue for your Christmas function;
  4. Appoint a couple of sober senior staff to keep an eye on things and respond to identified risks;
  5. Review your social media, bullying and sexual harassment policies and remind staff of those policies;
  6. Ensure that the venue hosting the function maintains a responsible service of alcohol policy including provision of food and non-alcoholic drinks;
  7. Stage the Christmas party at a venue easily accessible by after hours public transport options or consider making arrangements for coach or taxi hire to ensure staff have access to safe transportation after the party;
  8. Set a start and finish time for the Christmas party and inform staff that any after events after that time are not endorsed by the employer.

The team at HopgoodGanim Lawyers wishes you a very merry Christmas and a happy (claim-free) New Year!

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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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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Authors
Anna Hendry
Andrew Tobin
 
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