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Year end work functions provide employers and employees with the opportunity to reflect on the year that was 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 such functions are work events (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 during these functions. Reasonable steps may include:

  • limiting employees’ consumption of alcohol if it is available, including by limiting alcohol options to beer and wine and/or implementing a ‘last drinks’ cut-off time
  • 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 appropriate means 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 Remedy

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

  • reminding employees that the function is work-related and that employees are expected to uphold the same standards of behaviour that apply during ordinary working hours
  • ensuring Codes of Conduct and other policies are in place relating to acceptable conduct at work and work-related functions, and referring employees to these policies in advance of the function
  • reminding employees of their obligations regarding the responsible consumption of alcohol and to not drive home whilst over the legal driving limit (or such lower limit as may be contained in any applicable company policy such as a drugs & alcohol policy)
  • 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 (such as an unfair dismissal claim or work health and safety complaint/investigation).


Case Study – Differences in Evidence = Different Outcomes

The recent decision of Drake & Bird v BHP Coal Pty Ltd illustrates the importance of conducting a thorough investigation into workplace incidents, as well as the need to carefully assess the evidence obtained through the investigation.


In that decision:

  • Mr Drake and Mr Bird were operators at the BHP Goonyella Riverside mine
  • during a Christmas party function at the mine in 2018, Mr Drake and Mr Bird engaged in a fight with a supervisor (who was punched repeatedly in the head and nose)
  • following a brief investigation by BHP, both employees were dismissed on the grounds that they had physically attacked the supervisor in breach of BHP’s Code of Conduct
  • the employees claimed their dismissals were unfair and sought orders for reinstatement
  • the Commission considered the evidence tendered in the proceeding and compared it to the eyewitness evidence obtained during the investigation
  • the Commission found that the evidence established that Mr Drake had punched the supervisor during the fight, but that it could not sufficiently establish that Mr Bird had punched or even attacked the supervisor (albeit he had grabbed the supervisor’s clothing during the fight)
  • the Commission found that BHP’s Code of Conduct applied during the function and that the conduct of both employees had contravened the Code of Conduct
  • the Commission held that Mr Drake’s dismissal was not harsh, unjust or unreasonable, however, the absence of evidence into Mr Bird’s assault of the supervisor rendered Mr Bird’s dismissal both unreasonable (ie, no valid reason) and harsh
  • the Commission ordered that Mr Bird be reinstated to his former position with backpay (albeit with a 75% reduction due to Mr Bird’s contributory conduct)


Lessons for Employers

Given the scope and potential seriousness of claims arising from inappropriate conduct during end-of-year 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 an end-of-year work function, employers should:

  • conduct a thorough investigation into the incident including by interviewing all relevant parties and witnesses
  • ensure all employees involved in the incident are afforded fair and equal treatment
  • maintain procedural fairness throughout the investigation and any disciplinary proceeding
  • 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.