Mistletoe, Mirth, and Misconduct – How to avoid a Legal Hangover from your Workplace Christmas Party!

‘Tis the season of the office Christmas party – a time for fun, frivolity, and a few drinks!  However, when employees get a little too ‘festive’ at work functions, they may not be the only ones left with a headache!

Employers are legally responsible for the conduct of employees at work related events, such as work Christmas parties, as there is a sufficient ‘connection’ to the workplace.  In particular, employers owe a duty of care to their employees to take reasonable steps to reduce potential risks to their health and safety.  Employers can also be vicariously liable for the actions of their employees if the employer has not taken reasonable steps to prevent the unlawful behaviour from occurring.

This means Santa’s gift to employers tends to be an increase in workplace claims arising from inappropriate workplace conduct, including claims for sexual harassment, discrimination, and WHS breaches.

However, there is no need to grumble “Bah, humbug” at anything that might provoke festive cheer.  There are a number of things that employers can do to minimise the risks of prospective workplace claims.  We have made a list (and checked it twice) of our best tips and tricks for managing the Christmas season!

 Not all is calm and bright

There are a myriad of cases relating to employees engaging in inappropriate or dangerous conduct during work-related Christmas events.  Here are some memorable examples:

  1. A NSW police officer was given a formal warning after he showed a small group of fellow officers and their wives his “party trick” by opening their beer bottles with his genital piercing.
  2. An employee was dismissed after drinking 12-15 beers at his work Christmas party and urinating over the side of a balcony onto diners below at his employer’s Christmas party.[i]
  3. An employee pushed a colleague into a swimming pool fully clothed during a workplace Christmas party and was then caught on CCTV pushing and punching his General Manager who was requesting the employee to leave.[ii]
  4. An employee told a manager to “F*ck off” during an office Christmas party and then sexually harassed female colleagues after the party came to an official close and a group of employees moved on to the public bar area upstairs. Remarkably, the Fair Work Commission found that the employee’s dismissal was unfair, relying on the employers irresponsible supply of alcohol, among other things.[iii]
  5. A golf club was held vicariously liable for the conduct of its president who sexually harassed a female employee of the club, including repeatedly rubbing his genitals against her leg at the end of year Christmas party.[iv]
  6. An employee suffered burns to 16% of his body, when the employee and three heavily intoxicated colleagues attempted to light his t-shirt, which he had taken off, on fire by spraying flammable WD-40 and paint thinner after a work Christmas party. When one employee unintentionally sprayed paint thinner onto the other employee’s bare torso, the employee caught fire.
  7. An employee died as a result of head and neck injuries sustained after diving into the Noosa River while attending a Christmas function organised by her work. The Court found that the employer had not induced or encouraged the employee to dive into the river and therefore, her injury did not arise in the course of her employment.

Tips for Employers

It might be the most wonderful time of the year for some, but employers should be jolly careful when organising workplace festivities because the new year can be littered with lawsuits.  To avoid a Christmas party legal hangover without being the Christmas Scrooge, we recommend employers implement the following measures:

  1. Ensure the company has up-to-date and easily accessible workplace policies covering bullying and harassment, sexual harassment, discrimination, social media, work health and safety, and drug and alcohol use.
  2. Remind all employees prior to the Christmas function of the standards of behaviour expected of them and the consequences of failing to meet those standards.
  3. 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.
  4. Establish clearly defined starting and finishing times for work-related festivities and provide options for employees to travel home safely afterwards;
  5. Appoint a responsible senior employee to supervise the function.
  6. For those workplaces having a white Christmas (or when the white runs out, red), ensure the responsible service of alcohol and provide sufficient food and non-alcoholic drinks.  This means stopping service to inebriated employees.
  7. Deal with all complaints promptly, professionally and confidentially in accordance with company policies and procedures.

We wish everyone a Merry Christmas and a Happy and Claim Free New Year!

[i] Paul Brown v Aristocrat Technologies Australia Pty Ltd [2005] AIRC 656.
[ii] Damien McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343.
[iii] Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.
[iv] Shellharbour Golf Club v Wheeler [1999] NSWSC 224.