The months spanning the end of year period are nicknamed the 'silly season' for good reason. Workplace functions during this period are notorious for inappropriate behaviour and the human resources (HR) headache is guaranteed to follow.
Inappropriate workplace behaviour can present itself in many forms and have a variety of consequences, from workers' compensation claims to bullying and sexual harassment complaints. In order for HR managers to be one step ahead in the lead up to the festive season, we recommend taking the following steps when preparing for work-related events:
- review your workplace training and company policies that apply to social functions to ensure they are effective and clearly establish acceptable standards of behaviour
- remind staff of the company's expectations around behaviour leading up to the event to reinforce those policies and procedures. It is important to remind staff to not only consider their own behaviour, but to be mindful of their colleagues' behaviour and report anything inappropriate
- establish a robust complaints process which outlines consequences for bad behaviour, sets out swift disciplinary avenues and encourages employees to speak up about questionable conduct
- monitor behaviour and conduct during the event to diffuse risks, including the overconsumption of alcohol and offensive interactions
- consult staff about their experience at end of year events and use any data gained to make impactful changes to workplace culture.
An employer can be held vicariously liable for the actions committed by an employee in the course of employment. An employer has a duty to take all steps reasonably practicable to prevent the risk of a workplace injury. Being 'at work' includes performing work and participating in an activity authorised or encouraged by the employer. This means that an end of year function organised or hosted by the company, such as the Melbourne Cup or a Christmas party, constitutes "work" and your company can be held vicariously liable for an employee's inappropriate conduct.
However, an employer will not automatically be held liable for the conduct of its employees at work if it can establish that it took 'reasonable steps' to ensure its employees do not engage in unlawful conduct. 'Reasonable steps' include implementing effective policies, providing employees with adequate training and refresher courses on such policies and any amendments, and promoting an efficient complaints process. HR managers are expected to go beyond showing those policies or processes exist, they must actively communicate and enforce the company's policies and expectations.
Sexual harassment and discrimination
In 2022, the Australian Human Rights Commission conducted its fifth national survey to investigate sexual harassment in the workplace. The survey revealed that in the last five years, 41 per cent of women and 26 per cent of men have experienced sexual harassment in the workplace. Whilst the figure for men has remained steady, the amount of women experiencing workplace sexual harassment has increased by two per cent. Any upward trend in this kind of behaviour is a cause for concern.
Notably, the sexual harassment laws in Australia have recently changed. Sexual harassment is now expressly prohibited by the Fair Work Act 2009 (Cth) and the time limit for lodging a complaint has increased from 12 months to 24 months. Engaging in sexual harassment is also now a valid reason for dismissal. Sexual harassment at social functions may include unwelcome touching, suggestive and inappropriate comments or jokes, unsubtle proposals and invasive personal questions. This behaviour is more likely to occur where alcohol intake or 'silly' spirits are high.
HR managers should remain vigilant at events and monitor behaviour and the service of alcohol. Reminding employees ahead of, and during, the event regarding company expectations can be effective in managing behaviour.
Psychosocial hazards and risks
In July 2022, SafeWork Australia updated the model WHS Regulations to incorporate recommendations regarding psychosocial risks in the workplace, and in April 2023, SafeWork produced a new Code of Practice. We are slowly seeing these laws and regulations introduced into State and Territory legislative schemes so it is important to know if this change has occurred in your jurisdiction.
For example, these changes came into effect in late 2022 in NSW and in April 2023 in Queensland. It is important to note that the harmonised WHS scheme already requires employers to ensure the health and safety of workers and that the definition of 'health' means physical and psychological health. The updated legislation crystalises the requirement for employers to manage psychosocial hazards as part of managing psychological health. On the other hand, Victoria is not part of the harmonised laws and has established separate regulations to address psychosocial hazards in the workplace.
Bullying and sexual harassment are considered common psychosocial hazards. An employer found to have led or mismanaged these behaviours could be prosecuted under the new framework. In assessing whether to prosecute an employer following a complaint, a WorkSafe inspector will assess whether the employer has a system to identify, evaluate and control the risks associated with the psychosocial hazard, and whether they have a way to review control measures.
Risks arising from work functions may include the overconsumption of alcohol, inappropriate remarks or comments, unwelcome touching, and inappropriate gifts. HR managers must assess the likelihood of these hazards occurring and control the risks by implementing a system to eliminate or reduce them. Control measures could include policy training, reminders to staff as to expectations of behaviour and promoting a complaints process. To monitor and review these controls, employers should consult their staff to gain feedback regarding their experience at social events and use those insights to improve their workplace culture.
A party-proof approach
Rome wasn't built in a day, and neither were safe end of year functions. The key to a successful event is having a positive workplace culture in place. HR managers should consistently promote respectful behaviour and a safe workplace environment all year round.
If you need assistance with:
- implementing or reviewing your anti-discrimination/harassment policies
- developing and/or delivering induction or refresher training to employees on these policies
- investigating a complaint of discrimination or sexual harassment,
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.