When HO HO HO turns to OH OH NO!

Christmas decorations have been on sale in department stores for months now and soon enough it will be time for your staff Christmas party.  While they’re meant to be a fun celebration of the successful year that has been, many employers have learnt costly lessons from incidents that have taken place at their end-of-year show.

When the drinks are on you

Earlier this year, we wrote about the decision in Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156 which involved an employee being dismissed for his conduct at a staff Christmas party with an open bar.  The employee in question took full advantage of the drinks package, leading to him telling a manager to “f*** off”, as well as bullying and sexually harassing a number of his colleagues.

The employee was consequently dismissed and lodged an unfair dismissal claim.  While the Fair Work Commission (FWC) accepted that the employer had valid reason for dismissing the employee, it considered that the dismissal was unfair because the allegations against the employee were not properly put to him.  Further, the FWC held that:

It is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol at the function…  LBAJV did not place anyone with managerial authority in charge of the conduct of the function, but essentially let it run itself. I consider that the role of alcohol at the function weighs, at least in a limited way, in favour of a conclusion that the dismissal was harsh.

The FWC’s comments should highlight to employers that it will be difficult to take action against a misbehaving employee in the absence of any evidence of measures implemented to monitor alcohol consumption.  In addition to reminding employees prior to the event that the usual code of conduct/policies apply to the Christmas party, employers should also appoint a senior person to oversee the event and intervene as necessary.

The unwelcomed KK present

Recently it was reported that a public servant based in Canberra experienced “many sleepless nights and always felt heartbroken” after he received a KK gift of a plastic reindeer which produced chocolate droppings.  While this may seem harmless at first, the employee’s Secret Santa likened the droppings to the recipient’s work.

Although this incident was not litigated, it should serve as a warning to employers that not everyone has the same sense of humour; if a Secret Santa gift is discriminatory or causes health issues for an employee, an employer may find itself to be the subject of a claim.  At the time of announcing your workplace’s Secret Santa arrangements this year, employers should include guidelines to ensure that gifts are not offensive.

The injury at the staff Christmas party

The case of Australian Leisure & Hospitality Group Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) & Campbell [2014] QIRC 105 involved an employee sustaining fatal head and neck injuries from diving head first into the Noosa River during a staff Christmas party held in a park.  The Christmas party was not organised by the deceased’s employer, however the employer was aware that the employees had been arranging the event and raising funds to pay for food, drink and ice on the day.

While the regulator initially accepted the deceased’s husband’s claim for workers compensation, the Queensland Industrial Relations Commission ultimately found that the employer had not induced or encouraged the deceased to engage in the activity that she did and overturned the regulator’s decision.

Despite the fact that this case was eventually decided in the employer’s favour, we note that in typical circumstances a Christmas party thrown by an employer will be considered to be “in the course of employment” – even if it takes place outside of work hours and away from the office.  Therefore the employer will likely be held liable for any injuries sustained during the festivities. Accordingly, employers should ensure that their day-to-day safety standards continue to be enforced at the Christmas party.

Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice about your workplace policies