Australia: Work Christmas parties – setting boundaries of behaviour and staying out of trouble

Last Updated: 7 December 2016
Article by Nathan Luke

The circumstances in which you can sack a worker for terrible behaviour at a Christmas party, or a work function, are not as obvious as one would think.

Sacking for bad behaviour at Christmas party found to be harsh and unfair

An important Fair Work Commission decision, Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156, involved a Mr Keenan and his case for unfair dismissal compensation against his employer, Leighton Boral.

At the work Christmas party, an intoxicated Mr Keenan acted poorly. He propositioned female co-workers, even kissing one uninvited. He was verbally abusive to his superiors. After an investigation, he was fired.

The Commission found that the termination was harsh and unfair. They accepted that Mr Keenan should have been disciplined and counselled, but not terminated in the circumstances. An important factor was that the employer had provided free and unlimited alcohol and thus was partly responsible.

Further, a number of Mr Keenan's indiscretions took place after the office party at other venues and were outside the scope of his employment. This latter factor is one which in other cases has been decided differently.

Ultimate responsibility for work functions rests with employers

The issue of employer responsibility is highlighted in a large number of cases in which employees have successfully obtained compensation for injuries sustained or for wrongs (such as sexual harassment, bullying and discrimination) occurring at Christmas parties and work functions which got out of hand.

A drunken bunch of middle managers and junior staff is a volatile mix. The managers still have a position of power over the junior staff and inhibitions are down. Sexual harassment or even sexual assault can occur and employers can become liable.

So, what is an employer to do? Christmas parties and work functions are undoubtedly an important part of Australian business culture and can be fantastic events to say thank you to staff, raise morale and promote camaraderie among workers.

Employers can adopt a few simple strategies to help stay out of trouble and out of court.

Workplace policies setting out standards of acceptable behaviour

Have a clear written policy about what you consider to be acceptable behavior and provide appropriate warnings about discipline and termination for breach of the policy.

The policy should make it clear that the rules of behavior in the office apply equally to events organised by the company that are held outside the premises – be it a pub, club, park or sports ground. All the rules related to bullying, harassment, discrimination, inappropriate comments and sexual behavior still apply.

It should also be made clear to staff that a work function is not the time to "have a big night" and that obvious intoxication will result in them being asked to leave the function.

Photos taken at Christmas parties and perils of social media

Have a clear social media policy. Your reputation can be severely damaged by inappropriate imagery which is connected to your business being circulated on social media. Some employers have a policy that no images from the party are to be posted online by anyone other than the employer.

Limits on strength and quantity of alcohol served at functions

A basic and obvious rule. Don't serve too much alcohol. It seems to be an Aussie trait that we always make sure there is more than enough grog for a party. But for an office Christmas party you might have light beer, wine and no spirits and plan for the alcohol to run out or for the bar tab to be cut off well prior to closing time.

Another idea is to have a breakfast or lunch function or to invite the families and children of staff along. Such functions rarely end up at that bar in the city at 2 am.

What happens when the employer-controlled party is over

Many incidents occur in a grey zone. After the office party has finished at its venue, the staff and managers will often party on at other venues. This is where intoxication continues and unsavory events can occur. It can be difficult to ascertain when the employer-controlled office party ends.

One approach to this risk is to have a policy that staff are expected to leave the venue for home once the event is over. This direction should particularly be aimed at those in positions of power over junior staff. A sensible tactic is to provide staff with cab vouchers to get home safely.

Another approach to this risk is for an employer to ensure that there is a designated person, probably the boss, who stays completely sober and keeps a watchful eye to take action if there is any unwanted behavior. If staff and managers are going on to other venues to continue their celebrations, a good plan is to have the sober boss accompany the staff to these venues.

How should employers respond to unacceptable behavior at Christmas parties?

So the party is over and there is a problem. An employee's behavior was unacceptable. An important step is to take action very promptly. Leaving it to mid-January to start an investigation or take action is often too late and lacks the procedural fairness required to be given to an employee.

You will need to interview those involved in the incident. Take notes. You will then need to put the allegations to the employee. Take notes. Make a decision and put your reasoning in writing very carefully.

You will appreciate that the time and stress of an investigation is very detrimental to an employer, so prevention is always better than cure.

Changing standards of what constitutes acceptable behaviour

A local legend is the story of a bloke in the 1970s and 80s who at the office Christmas party, every single year, would drink 100 KBs, get obnoxious, try to fight co-workers, tell the boss in a long tirade what he really thought of him and then would tell the boss to get ****ed and resign in spectacular fashion. He would return to work on Monday sheepishly, cap in hand, to get his job back each year.

Times have changed and such behaviour would certainly not be tolerated today.

Nathan Luke
Employment law
Stacks Law Firm

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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