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Work Christmas functions provide employers and employees with the opportunity to reflect on the highs (and lows!) of the working year and are a great way to reward staff for their efforts and enthusiasm.

However, the ‘silly season’ can often be a cause of headaches for employers as employees can be prone to engaging in inappropriate conduct which may necessitate taking disciplinary action and/or give rise to an assortment of legal claims.

Employer’s Duty of Care

Employers need to remember that Christmas parties are work functions (even if held away from the workplace) meaning they owe a duty of care to their employees during these events.

What Does the Duty of Care Require?

This duty requires employers to take all reasonable steps to ensure the health and safety of employees including by:

  • if alcohol is available, limiting employees’ consumption of alcohol and ensuring that sufficient food is available to mitigate the effects of the alcohol
  • ensuring illicit drugs are not consumed during the event
  • monitoring employee behaviour for any inappropriate conduct (eg, sexual harassment, discrimination, bullying or violence) and immediately intervening if any such behaviour occurs or has the potential to occur
  • being aware of any potential safety risks associated with the venue or activities (eg, falling overboard on a harbour cruise)
  • ensuring that any intoxicated employees do not drive home following the function and that such employees have access to public transport or other lawful ways of getting home
  • ensuring that a senior manager remains present and sober at all times during the function in order to monitor the function and deal with any issues if they arise

Prevention is the Best Cure

To minimise the potential for issues or incidents to arise, employers should be proactive in the lead-up to the function including by:

  • ensuring Codes of Conduct and other policies are in place relating to acceptable conduct at work and work-related functions and ensuring that these codes and policies have been read and clearly understood by all employees
  • reminding employees that the function is work-related and that employees are expected to demonstrate the same standards of behaviour that apply during ordinary working hours
  • if necessary or appropriate, conducting training or refresher courses on inappropriate workplace behaviours such as bullying and sexual harassment
  • reminding employees of their obligations regarding the responsible consumption of alcohol and to not drive home whilst over the legal driving limit
  • making clear to employees that although the function is intended to be fun and enjoyable, any employees found engaging in inappropriate or dangerous behaviour during the function may be subject to disciplinary action up to and including dismissal

Failing to take these steps may undermine any serious disciplinary action taken by the employer and may give rise to further liability (eg, an unfair dismissal claim).

Case Study – Employee’s Inappropriate Conduct still Rendered Dismissal Unfair

In the decision of Keenan v Leighton Boral Amey Joint Venture:

  • an employee consumed a large amount of alcohol during the employer’s Christmas function
  • after leaving the function, the employee (together with a number of colleagues) proceeded to another bar where he sexually harassed several female employees, insulted several other employees, and told a manager to “f**k off”
  • following the employee’s return to work in January, the employer dismissed the employee for his conduct on the evening of the work function
  • the employee filed an unfair dismissal claim
  • although the Commission found the employer had established the employee’s inappropriate conduct, the conduct occurred following the work function and outside the venue chosen for the function (meaning the conduct was not ‘in connection’ with the employment)
  • the Commission held that the employer had failed to provide the employee with an adequate opportunity to respond to the allegations prior to dismissing him
  • given these factors, the Commission found the employee’s dismissal was unfair

Lessons for Employers

Given the scope and potential seriousness of claims arising from inappropriate conduct during work functions, it is essential that employers take pro-active steps to endeavour to prevent the inappropriate conduct before it arises.

If an incident does arise during a work-related function employers should:

  • conduct a thorough investigation into the incident including by interviewing all relevant parties and witnesses
  • make sure any findings made are objective and fair and have not been pre-determined
  • ensure that any employee subject to disciplinary action is afforded procedural fairness
  • seek legal advice if dismissal is being considered

More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635 7966 to speak with one of our employment lawyers if you require any assistance or advice.