Let’s Not Be Silly During The Silly Season


With the Christmas and New Year period upon us, many employers will be celebrating the end of 2017 with their employees. Whilst the 2016 comedy film “Office Christmas Party” is an extravagant portrayal of a Christmas function gone bad and which seems, in many ways an over-exaggeration of what really happens, in our experience these Christmas events are notorious for being a potential breeding ground for inappropriate workplace behavior. These parties and events may put employers at risk of litigious actions such as sexual harassment, bullying, discrimination and unfair dismissal claims.

In this regard, both state and federal anti-discrimination laws provide that employers must be able to demonstrate that they have taken all “reasonable steps” to prevent unlawful discrimination and sexual harassment from occurring in the workplace. Any workplace Christmas or end of year event will be considered the “workplace” and the employer will be liable for any inappropriate or unlawful behavior that occurs, if they have not taken all reasonable steps to prevent such conduct. It is therefore imperative for employers to educate staff around what constitutes acceptable behaviour, and what kinds of conduct may give rise to disciplinary action. To this end, it is important that employers remind their staff about workplace policies in relation to acceptable codes of conduct which continue to apply and should not be ignored in the context of an event organised by the company, even if it is not on work premises. It is worthy to note that the meaning of a “workplace” has been significantly broadened by the Courts, to include social gatherings at bars, restaurants or other public venues at which interactions amongst staff occur.

In addition, under work health and safety laws, an employer owes an overarching duty to take all steps reasonably practicable to prevent the risk of injury in the workplace. The same duty of care is owed generally under the common law. In the context of work Christmas parties, subtle risks can often be overlooked by employers such as the service of alcohol, at an employer’s expense, and the possibility of participation in illegal drug taking and in some circumstances sexual misconduct amongst staff.

In this respect, and given the ability for sexual harassment and other claims to be commenced against employers as well as individual perpetrators under accessorial liability provisions provided for in various legislative instruments, it is imperative that employers take all reasonable steps available to them to provide employees with proper information, training and supervision to prevent such issues from arising.

Examples of recommended control measures include:

  1. developing and implementing policies around appropriate workplace behaviours, and refreshing these expectations with your employees regularly;
  2. consulting with staff in relation to your expectations of their behaviour at work Christmas parties;
  3. providing training to employees on their obligations under various legislation, including in respect of work health and safety;
  4. Ensuring adequate security and safety measures are in place at the venue;
  5. Auditing any foreseeable risks, particularly when deciding on venues, start and finish times, food to drink ratios, and implement measures to prevent injuries from occurring;
  6. Monitoring the amount of alcohol served generally;
  7. Ensuring that the consumption of alcohol and service of alcohol is limited and stops at a reasonable hour;
  8. Sending a reminder to all staff prior to any event, regarding their obligations to behave appropriately, the company’s policies regarding harassment and appropriate behaviours, and the consequences if they do not; and
  9. providing access to counselling and an EAP services provider.

In the event that a complaint or inappropriate workplace matter is raised about alleged misconduct at a work Christmas event, it is of vital importance that responsive action is taken quickly by employers. Such measure that ought to be considered, depending on the sensitivity of the issue, include:

  1. providing counselling and support services to the complainant;
  2. keeping the complainant informed as to the steps being taken to respond to the matter;
  3. cooperating with Police and notifying the relevant safety regulators (if warranted);
  4. investigating the matter fully either internally or via an external investigation service;
  5. notifying the employee against whom an allegation has been made and requesting their response; and
  6. suspending the accused employee until all the facts have been gathered and a course of action has been decided upon.

In approaching these matters, practical strategies employers should otherwise bear in mind when responding to workplace complaints include:

  1. avoid delaying the response time to allegations;
  2. never assume an allegation is frivolous or vexatious without making inquiries;
  3. consider all the evidence and then determine an appropriate disciplinary response;
  4. document clearly and comprehensively each step of the response process;
  5. provide employees with counselling or an EAP services provider; and
  6. communicate effectively and appropriately when dealing with sensitive workplace matters.

Relevantly, whilst inappropriate workplace conduct should be dealt with and punished accordingly, employers need to ask themselves whether the punishment fits the crime. It is therefore not only relevant to act in circumstances where a complaint of inappropriate behaviour is received, but to ensure the ensuing response is proportionate, fair and reasonable.

Whilst new examples emerge each year, in 2016, the case of Damien McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343 was by far the leading decision in this area. In this case, the employee was a project coordinator at an engineering firm, Future Engineering and Communication Pty Ltd (“FEC”). During his employment, his colleagues had previously noted that he sometimes behaved in a domineering or aggressive manner at work. In December 2014, FEC had arranged a day of go-karting followed by a Christmas party at the office (which had a swimming pool) for its employees. At the party, there was an unlimited amount of alcohol for employees to consume.

During the party, Mr McDaid became intoxicated and started behaving aggressively towards another colleague, Mr Sinna, who was a senior engineer at FEC. Those at the party saw Mr McDaid push Mr Sinna in the chest a few times in an aggressive manner before ultimately pushing him fully clothed into the swimming pool. Following the incident, Mr McDaid’s general manager asked him to leave. When Mr McDaid refused, their conversation escalated into a fight with both suffering injuries.

Following Mr McDaid’s return to work, FEC investigated his behaviour and conduct at the party. Two months later, FEC called Mr McDaid to a meeting which he attended with a support person. He was given notice in writing of his dismissal with reasons and given an opportunity to respond. McDaid maintained that he had no recollection of what had occurred at the party, and subsequently accused FEC of unfairly dismissing him. In this particular case, the Fair Work Commission concluded that:

  • Mr McDaid had aggressively and repeatedly “harangued” a colleague before pushing him into a pool;
  • Mr McDaid refused to leave the office premises when told to do so by his manager; and
  • Mr McDaid initiated a fight with his manager by pushing him and injuring him.

Against this background and the investigation process undertaken by FEC prior to the dismissal, the Commission was satisfied that FEC had a valid reason for the dismissal and followed a proper process. The dismissal was therefore justified.

Whilst work functions are a great opportunity to have fun with colleagues, our recommendation to surviving the silly season is to be honest with yourself as to whether everything reasonably practicable has been done to ensure all employees are safe and without risk of being subjected to offensive behaviour.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

We wish all our client’s well over the festive season and a prosperous New Year.

This alert is not intended to constitute, and should not be treated as, legal advice.

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