‘Tis the season: how to navigate the work Christmas Party
Posted on November 02, 2023
As the silly season approaches, employers and employees should be reminded of their responsibilities when hosting or attending Christmas parties.
As the drinks and festivities start to flow, responsibilities and control become blurred. It is well established that work related functions are considered part of the ‘workplace’ for the purposes of an employer’s work health and safety obligations. With the introduction of the Respect @ Work law, employers now have a positive duty to ensure that the Christmas party (and the workplace generally) is free of any forms of sexual discrimination and sexual harassment which may create risks to the health and safety of employees and other people attending work events.
The after party may also continue the responsibilities for the employer. Accordingly, it is extremely important that an employer communicates a clear end time of the event and outlines any organised, appropriate ways for employees to get home. We also suggest that an employer should expressly communicate that any events following the event are not part of the event.
Alcohol can often be an aggravating factor. Accordingly, an employer should ensure that there are limits and controls placed on the service of alcohol and that there are sufficient employees taking a supervisory role.
All employees should be reminded that the same standard of behaviour expected in the workplace on any usual work day is the standard expected at the Christmas party. The impact of social media should not be forgotten; harassment can occur electronically.
Misconduct may occur at work events which can cause tensions in the workplace and may lead to disciplinary action being taken against an employee.
This article outlines cases where misconduct has led to the valid dismissal of employees and provides some tips for mitigating risk at these events.
Cases
- In Damien McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343, an employee became too intoxicated at a work Christmas function (where there was an unlimited supply of alcohol) and displayed a series of aggressive behaviour towards two fellow employees. Specifically, Mr McDaid pushed another colleague several times before pushing him in the pool and had a physical altercation with a senior employee. The Fair Work Commission (FWC) accepted that this was a valid reason for the employee’s dismissal.
- In Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118, an employee was dismissed for throwing beer at a work colleague at the work Christmas party. The FWC accepted that Mr Vai’s dismissal was valid as the conduct occurred at an event where alcohol was served in a controlled manner and senior staff members were supervising.
- In Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 an employee was dismissed following drunken misconduct at and after a work function. Specifically, Mr Keenan was accused of making a series of inappropriate comments to senior employees, grabbing female staff and kissing them without consent, and making sexually charged comments towards several female colleagues. Importantly, some of this conduct occurred at a different location after the work event had ended. In contrast to Vai v ALDI Stores, the FWC determined that Mr Keenan’s dismissal was unjust in that it was disproportionate to the gravity of the conduct, notwithstanding the fact that his conduct constituted a valid reason for dismissal. The FWC cited several vitiating factors in their reasoning, of most importance being the fact that alcohol was supplied on a self-service basis and no precautions were taken to control the event. This case provides a strong cautionary tale to employers providing alcohol at their events to place and enforce limits on consumption.
- In Puszka v Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited [2019] FWC 1132, an employee was accused of a series of misconduct while intoxicated, including vomiting on the bar floor, and making sexual propositions to venue staff and derogatory comments about her fellow employees. The employee was summarily dismissed by the employer following a brief and truncated investigation that lacked the inherent qualities of procedural fairness. The FWC found that Ms Puszka was unfairly dismissed as not all aspects of the alleged misconduct had been substantiated and those that were substantiated were not sufficient to justify a dismissal. In this regard, Commissioner Cambridge stated that ‘Frankly, if one act of inoffensive drunkenness at an after-work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs’. The employer was ordered to reinstate Ms Puszka and compensate her for lost remuneration. This case provides a prudent reminder that employers must be prepared to undergo investigations promptly and diligently so as to avoid attracting procedural unfairness.
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.
- Remember that training for employees in relation to appropriate workplace conduct, including what constitutes unlawful, discriminatory or inappropriate conduct should be undertaken regularly.
- If 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.
Ultimately having fun and being able to celebrate the end of a year in a safe and enjoyable event is the goal.
Have a merry and safe Christmas from the Lynch Meyer workplace relations team!
