The annual staff Christmas party - HO HO HO with NO NO NO Claims!
Posted on December 01, 2022
The holiday season is fast approaching, and many employers will be holding their annual work Christmas party. Work Christmas functions are a chance for employees to interact with their colleagues in more relaxed and social settings and reflect on their achievements throughout the year. As this is likely to be the first post COVID get together in several years, expectations and excitement levels might be higher than usual.
However, employers must beware of the inherent risks around work health and safety and harassment surrounding these events. An employer’s duty of care to ensure the safety and wellbeing of employees extends beyond the office and to any place where functions are carried out in connection with work, including Christmas parties. It has been held that the “workplace” can include an after party or after work drinks, even if unsanctioned by the employer. This is particularly important considering that the consumption of alcohol often correlates with heightened risky behaviour.
Employees must also be warned of the high bar in relation to their social and physical interactions at work events, especially in relation to sexual harassment given the recent media coverage and social discourse on these issues.
A recent example
John Keron v Westpac Banking Corporation [2022] FWC 221
In this case the Fair Work Commission (FWC) recently upheld the dismissal of a Westpac Senior Relationship Manager for briefly touching a female colleague’s backside at after work drinks despite his unblemished 35-year employment record.
On 10 March 2021, all Westpac banking staff were required to attend an offsite compulsory professional development day (Workshop). Following the end of the Workshop at 4pm, Westpac had organised an optional sundowner event as a social event for staff.
Each staff member who attended the Sundowner had a wristband which identified them as being a Westpac guest and enabled them to access a bar tab and finger food. At the conclusion of the Sundowner event at 7pm, the Applicant and a small number of employees remained at the pub to continue to socialise. There were two incidents which occurred throughout the evening which led to the Applicant’s employment being terminated.
The first was indecent assault which occurred after the Sundowner event where the Applicant placed his hand in the middle part of a female colleague’s lower buttocks “in an intimate manner” then moved his hand upwards towards her waist (Incident One).
The second was verbal abuse which happened when the Applicant and the remaining employees visited the nearby Crown Casino, where the Applicant swore at another female colleague (Incident Two).
The FWC held that Incident One was sufficiently connected to the employment and warranted dismissal. In contrast, the FWC held that there was no sufficient connection between Incident Two and the employment.
The FWC noted that the bar as to what constitutes consent for physical and sexual interactions has been significantly raised and there is an even higher bar in work related environments. The current climate has put employees on notice that their ‘social’ behavior will “attract greater scrutiny and face higher standards than in the past”. The FWC was also critical of Westpac’s venue choice and the fact that Westpac provided their employees with “apparently unrestricted access to alcohol for more than two hours”. The FWC was also critical that senior management did not remain at the function to ensure that its employees safely departed the venue nor was there any provision made to ensure intoxicated employees could get home safely.
Tips for Mitigating Risk
We recommend the following tips for mitigating risks at your work Christmas party:
- Before the event takes place, employers should ensure that their policies are up to date and that employees have been reminded of their obligations in this respect. It is also recommended that employees are reminded of the standards of behavior expected at the event and the consequences of failing to meet those standards.
- If supplying alcohol at your work Christmas party, employers should ensure that they take steps to serve alcohol responsibly. Employers should also provide sufficient food and water at the event.
- Employers should consider appointing a responsible person to supervise work events to avoid misconduct and other WHS hazards.
- Employers should provide a clear finish time of the event to make employees aware that the event will no longer be considered ‘work-related’ from that point. Further, employers should provide employees with safe modes of transport to and from the event.
- Finally, remember that training for employees in relation to appropriate workplace conduct, including what constitutes unlawful, discriminatory or inappropriate conduct should be undertaken regularly .
In the event that a complaint arises, employers should be prepared to undertake an appropriate investigation in a timely manner to ensure that the issues are resolved promptly and any damage is minimised.
Please contact our workplace relations team if you require assistance.
