Australia: How to avoid HR Christ-messes at your workplace functions this silly season.

As the year draws to a close and festive cheer begins to spread, the many potential pitfalls of the silly season workplace social calendar are once again rearing their heads. But there are steps you can take to avoid your workplace social functions turning into 'Christ-messes'...

Like the three wise men, we bear three gifts for you below: three handy tips for keeping your silly season social functions stress free.

TIP 1: BE CAREFUL WITH THE LIQUID GOLD

Ensuring your event is a HR success starts with good, thorough preparation. And when it comes to alcohol, you will always need to tread carefully...

Ensure control and assign responsibility

If your event is going to involve alcohol, ensure the venue follows responsible service of alcohol protocols. Having a quick, quiet word to the bar staff to let them know that they can say 'no' to Barry from accounts if he is getting out of control can go a long way.

Further, ensuring someone in management is responsible for the event and serves as the contact for the venue can help to de-escalate any problems. Even when a venue is responsible for the service of alcohol, case law suggests best practice is to have someone with managerial authority in charge of supervising the function.

From a practical point of view, it is always advisable to also serve non-alcoholic drinks and a good amount of food.

Avoid self service

Allowing alcohol to be self-served is always risky.1 Even if your event is at the office or a private venue, spend the extra cash and get wait staff to serve drinks. This will help you monitor how much everyone is drinking and allow you to cut someone off before things get messy if necessary. Hey, the wait staff may also offer to do the dishes for you!

While employees who choose to drink can be held accountable for their own actions, an employer that provides alcohol at a work function (whether self-served or not) and takes no steps to ensure it is consumed responsibly may be culpable for events attributed to the consumption of alcohol, such as a drunken employee falling down the stairs.

Keep in mind that drinking may be an explanation for bad behaviour, such as a physical altercation with a colleague or sexual harassment, but it will not be found to be an excuse.2

Don't be afraid to cut someone's night short

If someone is enjoying the drinks too much, it may be appropriate to cut them off from further consumption or send them home (in a safe way). Remember that if there is debate about whether an employer took appropriate steps to manage a situation, the Fair Work Commission and other tribunals or courts will often consider positive actions (such as cutting someone off or asking them to leave) as helpful in establishing that the employer took reasonable steps. A refusal by an employee to leave when directed to may in itself be sufficient grounds for dismissal.3

Prior to your event, don't forget to remind employees that your company's policies and standards still apply at the Christmas function, and that any rude-olph behaviour will not be tolerated.

TIP 2: CONSIDER THE MYRRH-KY LINE BETWEEN EMPLOYMENT AND THE AFTER PARTY

Where an incident occurs (i.e.at an official function or at an after party) will be relevant to whether the employer has liability for it and whether the employee's conduct can be the basis for disciplinary action.

Make start and finish times clear

Setting the boundaries of your event by making the start and finish times clear (either by calendar invite or in an email) can be the first step in limiting what the employer will be responsible for.

Additionally, ensuring the venue makes it clear when the party or tab is over can be another step towards successfully defending any potential claims. An announcement can be made by bar staff or a manager when the party is over, and you should also consider mentioning safe ways employees can get home. Keep in mind however, that the end of food and alcohol paid for by the employer may not always indicate that the work function, and therefore liability, has ended – particularly if employees hang around at the venue.4

Monitor any pre-parties

You should consider what employees might be doing before the official party starts. Teams holding long pre-party lunches or pre-drinks can lead to employees being several eggnogs down before they even arrive. Ensuring managers monitor this, and having security at the door refusing entry to those who are already intoxicated, may assist. If someone is refused entry, ensure you have let security know the steps you would like them to take (such as making sure they get in a cab or letting the employee's manager know).

Be aware of after parties

If an incident occurs after the official event at an after party, you will need to consider if there is a sufficient nexus between the conduct and the employment relationship to justify disciplinary action or termination. While it will be many shades of grey, if the conduct in question is not connected with the employment because it was not 'organised, authorised, proposed or induced' by the employer, it may not be appropriate to discipline or terminate the employee because of the conduct.5

This will also depend on the circumstances. It has previously been held that conduct (including telling a co-worker that their 'mission for the night is to find out what colour knickers you have on') upstairs at the same venue as the work party, and at the cab rank later on, was not within employment.6 In this case, the company dismissed the employee for the conduct and it was ultimately found the dismissal was unfair. However, in another case, conduct in the taxi on the way home from the staff party (which included a manager threatening to inappropriately touch a female colleague if she did not stop talking) was held to be within employment, and therefore formed a valid reason for dismissal.7

Keep watch on online activity

In the digital age, even Santa can't resist a selfie. Make sure your company's social media policy is up-to-date (and includes guidelines on posting photos from work events), and remember that this will be another area in which determining what is or isn't within the employment relationship will be complicated (perhaps even more so than navigating the Boxing Day sales!).

Giving employees a gentle reminder that they should treat each other with respect, in person and online, can go a long way towards helping people remember their manners. Also, if you have a particularly snap-happy workforce, consider holding some training about appropriate online conduct before the event.

While the strategies we've outlined above may help, case law ultimately shows that in some circumstances, incidents that occur after the lights go out and the event is officially over may still be within the employment relationship.

The guiding principle from the leading case of Rose v Telstra8 remains that to justify a dismissal where the event took place out of hours or outside of normal work activities, the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Make sure you keep this in mind when determining if an employee should be disciplined for their conduct.

TIP 3: YOU DON'T NEED FRANKINCENSE, JUST USE YOUR COMMON-SENSE!

If anything inappropriate does occur at your event, snap into action straight away.

Investigate any incidents promptly

Follow your normal procedures and don't wait for January to start an investigation into an incident. For example, if it is relevant to look at security camera footage, ask the venue for it promptly, as such footage is often only held for a short time. If you deal with issues quickly, it will be easier to gather the necessary facts.

If your company is in shut down over the Christmas period, it may still be necessary that a skeleton staff from HR is available to deal with any issues that arise. If key witnesses are away, make sure the issues are followed up as soon as possible and all those involved are updated on the reasons for any potential delays. Ensure support is given to any alleged victims or complainants. If you hear of bad behaviour through the grapevine, don't wait for a formal complaint to start looking into the issue.

Despite everything we've outlined above, there's no need to be a Grinch! When it comes time for your workplace Christmas function, just make sure you keep these three tips in mind, and ultimately, remind employees it is still a workplace and they should save the inappropriate behaviour for Christmas dinner with the in-laws.

Footnotes

1 Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.

2 McDaid v Future Engineering and Communications Pty Ltd [2016] FWC 343.

3 McDaid v Future Engineering and Communications Pty Ltd [2016] FWC 343.

4 Hughes v Momentum Wealth Ltd t/a Momentum Wealth [2017] FWCFB 759.

5 Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.

6 Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.

7 Rogers v Allianz Insurance Australia T/A Club Marine Insurance [2017] FWC 537.

8 Rose v Telstra Corporation Limited [1998] AIRC 1592..

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.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

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

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

Authors
 
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”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions