All I want for Christmas…is to not be sued! Surviving the work Christmas function
Posted on December 12, 2018
It’s beginning to look a lot like Christmas. The weather is warm and the celebrations are nigh. Employees are hanging out for the end of year Christmas function and can almost taste the champagne. But what happens when people get a little overzealous at the Christmas party?
PA RUM PA… PCBU !
A person conducting a business or undertaking (PCBU) has a primary duty of care to ensure workers and others are not exposed to risks to their health and safety as a result of work activities. This duty may extend to any employee’s partner or guests in attendance at a work related function.
Anyone in a management role or control of a workplace may also be considered as duty holders.
Where a person has a duty to ensure health and safety, they are required to:
- eliminate risks so far as is reasonably practicable; or
- if this is not possible, minimise risks so far as is reasonably practicable.
Report it or regret it!
With the #MeToo movement in full swing, employers are encouraged to be extra vigilant in relation to harassment and discrimination policies, including policies and procedures regarding reporting incidents.
In a recent case of XVC v Joanne Baronessa (Human Rights)[1] the Applicant was working for Marriott Support Services (Marriott) at a site where a railway level crossing was being replaced. Lendlease had engaged several contractors to provide labour at the site. The nature of the Applicant’s role brought her into contact with a male employee of Rail Safe. The Applicant claimed that he made comments of a sexual nature and comments about violence either to her or in her presence on several occasions. The Applicant claims to have reported these comments to Joanne Baronessa of Marriott, who responded with words to the effect of “you are working in a man’s working environment and you need to expect that kind of unwanted attention”. There was no evidence that Ms Baronessa referred to any procedure for making a complaint or told the Applicant how this could be done.
The Applicant claimed that the Respondents discriminated against her on the ground of her sex, in breach of section 18 of the Equal Opportunity Act 2010 (the Act), in that the Respondents authorised or assisted the sexual harassment by the male colleague and that Marriott is vicariously liable for the First Respondent’s conduct.
The Victorian Civil and Administrative Tribunal ordered the Respondent to pay $10,000 in damages to the Applicant, for discouraging her from making a sexual harassment complaint about the inappropriate comments. Similar provisions exists in South Australian legislation and federally.
A Christmas Miracle (for employers)
It is not always such a frosty time for employers. In a recent decision of Vai v ALDI Stores[2], the Commission held that the dismissal of an employee following an incident at the staff Christmas function was not unfair.
During the 2017 ALDI Christmas party Mr Vai allegedly threw a beer glass and its contents in the direction of other employees, including two Section Leaders. He claimed to have not been able to recall the event. Mr Vai was subsequently dismissed from his employment by ALDI.
The Commissioner held that Mr Vai was not unfairly dismissed. In determining whether the decision was fair, the Commissioner considered that the termination was in line with ALDI’s workplace policies. ALDI was able to establish that it had upheld the workplace policies in that there was limited service of alcohol and security guards hired for the event. Mr Vai was also cut off from the service of alcohol. The Commission found that these steps established ALDI’s commitment to the workplace policies, even though ALDI did not communicate policies to the staff before the event.
Hark! The HR team sings! What can employers do to mitigate risk and avoid a workplace claim?
The Christmas function should be a time for cheerful and wholesome celebrations amongst colleagues. We have therefore complied the below list of tips for employers to help ensure you have a holly jolly function this Christmas!
- Deck the halls with reminders regarding policy
Employers ought to ensure that they have updated workplace policies which cover bullying and harassment, sexual harassment, discrimination, social media, work health and safety and drugs and alcohol.
Employees should be reminded prior to the Christmas function of the standards of behavior expected of them and the consequence of failing to meet those standards. This should extend to procedures for reporting incidents.
- Appoint leaders
Senior staff should be encouraged to lead by example and know what their expectations are. This could include training on how they can model appropriate behavior and protect themselves from any unwanted allegations. For example; not drinking to excess, not displaying distasteful or offensive behavior and not being alone with more vulnerable colleagues.
Training should extend to procedures regarding how to intervene when duty holders spot a risk or undesirable behavior and how to manage a complaint.
- Promptly investigate incidents
Employers should deal with all complaints promptly, professionally and confidentially in accordance with company policies and procedures. All complaints should be taken seriously and investigated appropriately.
- Undertake a risk assessment
Prior to the Christmas function, undertake a risk assessment of the venue to identify potential safety hazards and continue to monitor those hazards throughout the event. A risk assessment could include identifying safety hazards, accessibility and ability to get to and from the event, the need to hire security guards and the availability of CCTV footage.
- Ensure everyone gets home safely
All functions should have a clear start and finish time. Employees should be provided with transport to travel home safely afterwards, which might include a privately hired bus for larger groups, or the offer to reimburse taxi fares for individuals.
- Avoid excessive alcohol service or intake
For those workplaces supplying alcohol, employers must ensure the responsible service of alcohol and provide sufficient food and non-alcoholic drinks. Employers are less exposed to risk in circumstances where they can establish the responsible service of alcohol at an event and the monitoring of alcohol intake.
Inebriated employees should be cut off from the service of alcohol and appropriately assisted with transport home. All individuals consuming alcohol should absolutely not drive to or from the event.
That’s a wrap ! Have a merry and safe Christmas from the Lynch Meyer workplace relations team !
[1] XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492 (3 October 2018)
[2] Vai v ALDI Stores [2018] FWC 4118
