Silly season is fast approaching and it is time for our annual reminder to employers about the risks associated with end of year functions, events and parties. We also provide some tips on how to minimise the risks before, during and after the event.
Reminders about expected standards of conduct
All employees should be reminded in advance (in a meeting or by distributing a memo) that the event is a work function and that the same standards of behaviour expected in the workplace will be expected at the function. In particular, remind employees that sexual harassment and breaches of work health and safety obligations will not tolerated.
Employees should also be reminded to dress appropriately. For example, costumes at a fancy dress party should not be offensive or inappropriate.
Decisions to include physical activities should be carefully considered given the workers compensation liability for injuries in this environment – if included, employees should be required to wear appropriate attire (including footwear) for the activity.
In the lead up to silly season, refresher training on any relevant Code of Conduct or other policy like work health and safety, social media, drugs and alcohol, anti-discrimination, anti-sexual harassment or anti-bullying is never a bad idea. Employees should be reminded of the potential disciplinary consequences if an employee’s conduct does not live up to the expected standards.
Planning food and alcohol
If delegated to employees, planning the event should always be overseen and approved by a senior manager.
Plenty of food should be planned as one way of managing excessive alcohol consumption. The food should be hearty and substantial, such as hot finger food or full meals.
Of course, proper arrangements must be in place for keeping food at the right temperature or covering food where appropriate.
Employers should cater for employees with food allergies, intolerances and dietary restrictions as the result of their personal or religious beliefs – a sausage sizzle is not for everyone. Food designated for those with allergies, intolerances or dietary restrictions should be clearly labelled.
Plan a drinks menu that includes alcoholic, low-alcohol and non-alcoholic drinks. Make sure that drinking water is also readily available.
To impose a limit on the amount of alcohol available to each employee, employers might consider a personalised drink voucher system.
Employees should be reminded to respect their colleagues’ decision not to drink if that is the case and should not pressure them into drinking.
Start and finish times
When sending out an invitation and any follow-up information about the event, employers should be very clear about the start time, finish time and location.
A strict cut-off time should apply to the service of alcohol and if possible, employees should be directed to leave the venue at the finish time.
Employees who wish to continue on to another venue should be clearly advised that from the time the official work function ends, they will be responsible for their own actions.
Service of alcohol
Employers are expected to exercise some control over the way alcohol is consumed by employees. This really means that “self service” is a thoroughly bad idea and someone must be supervising access to and consumption of alcoholic drinks.
Responsible service of alcohol is a lot easier to manage when service is provided by professional bar staff, trained in the responsible service of alcohol. This will reduce the amount of over indulgence and help to eliminate any situation where a fellow employee has to deal with the difficult situation of refusing to provide a drink to a colleague or their boss.
Under no circumstance should employees under 18 years of age be served alcohol.
Venue
The venue of the event is an important consideration. It should be somewhere safe that will not place the health and safety of employees at risk – even at work functions, employers have a duty to provide a safe environment.
Employers should also consider the implications of sharing a venue with other companies. Sharing a venue may reduce costs but employees from another organisation can introduce an unknown and uncontrollable element.
For example, in Packer v Tall Ships Sailing Cruises P/L & Anor [2014] QSC 212, two separate companies had their Christmas functions on the same boat. One company’s event was a family event but the other was not. When the second group became rowdy, an employee from the family event approached members of the rowdy event to ask them to stop swearing in front of their children. That employee was king-hit in the back of the head by a guest from the other party and suffered serious injuries as a result.
Whilst the court found that the employer was not liable for the employee’s injuries, it did find that the employer owed a duty of care in those circumstances and the injuries sustained by the employee were a tragic occurrence at the Christmas function.
“Secret Santa” and gift giving
Employers should remind employees engaged in gift exchanges that gifts should be appropriate and not offensive or capable of being misunderstood.
In 2014, the story of a 2012 Secret Santa gone wrong was widely reported when the gift exchange resulted in an Australian Public Service employee accepting a voluntary redundancy to escape the work environment. The employee was anonymously given a novelty reindeer that dispensed chocolate from its rear as a Secret Santa gift. Attached to the gift was a note that implied that the recipient’s work was poo. The identity of the gift giver was never definitively established and so the employee was never able to address the comment on his work performance directly with that person. As a result, the employee felt his working environment became untenable and when the opportunity to leave presented itself, he took advantage of it.
Transportation
Employers should ensure that employees get home safely. This may involve organising a private bus or issuing CabCharge vouchers for employees who live long distances from the event venue.
Employers should also ensure that employees who have been issued with a company vehicle do not drive the vehicle home if they have been drinking at the event. This direction to employees should be issued in a memo and distributed before the event.
Other considerations
As mentioned earlier, employers should make it clear to all employees that any festivities that continue after the Christmas party or other end of year events are not endorsed by the employer and are on the employees’ own time.
For employees who do elect to gather elsewhere, managers should avoid attending and should certainly avoid “shouting” to ensure the after-party is not considered to be a work sponsored event.
To illustrate our recommendations, we have prepared two case summaries from the last year involving consumption of alcohol and employee conduct at end of year work events.
Stephen Keenan v Leighton Boral Amey NSW Pty Ltd [2016] FWC 3156
In this case, an employee drank too much alcohol at the Christmas party and was aggressive, offensive and inappropriate to colleagues. Some of the offending conduct occurred at the official work party and some of the conduct occurred afterwards in other locations.
Following the events of the Christmas party night as a whole, the employee was dismissed from his employment.
The employee lodged an unfair dismissal claim and argued that in all the circumstances, his dismissal was harsh, unjust and unreasonable. In deciding whether the dismissal was unfair, the Fair Work Commission (FWC) found that:
As a result, the employee was never refused service and got very drunk. The fact that the employer did not exercise control over the service of alcohol contributed to the harshness of the employer’s decision to dismiss the employee.
It was found, therefore, that the conduct which occurred away from and after the official party did not have the requisite connection to work such that that employer could rely upon that conduct as a reason for dismissing the employee.
Ultimately, the FWC found that the dismissal was unfair because the employer had included all the events of the evening in its decision and should have only relied on the incidents that happened at the official work party. The FWC also criticised the employer for its failure to exercise control over the service of alcohol.
Damien McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343
For the end of year celebration, the employer arranged for its employees to attend a go-kart event in the afternoon followed by a function at the employer’s premises. At the function, the employer provided alcoholic drinks, non-alcoholic drinks and food. There were no controls in place over the amount of alcohol consumed by individual employees.
One particular employee drank too much alcohol and became aggressive towards a number of his colleagues. The employee “harangued” a colleague about work matters before pushing him (fully-clothed) into a pool. Later, he told another colleague to “f—k off” when asked to leave the party before engaging in a physical altercation, which resulted in the colleague sustaining minor injuries.
The employee was subsequently dismissed for his conduct at the party and lodged an unfair dismissal claim.
The FWC found that the conduct complained of did occur at the work party and did occur as described by the employer and its witnesses.
In his reasoning, Commissioner Williams noted that the employee had been verbally aggressive in the workplace in that past and so his conduct at the party was not out of character.
Commissioner Williams also said:
Whilst in some circumstances an employer that provides alcohol at a work functions and takes no steps to ensure it is consumed responsibly may be culpable for events attributable to the consumption of alcohol, such as a drunken employee being injured falling down stairs, employees who drink will also be held responsible for their own actions. The fact that someone has been drinking when they behave badly may in part explain their actions but it should not be accepted as an excuse for that misbehaviour. How much alcohol one drink is a choice they make and that choice comes with consequences. Society no longer readily accepts alcohol consumption as an excuse for bad behaviour and certainly not for physical violence.
The employee’s dismissal was found to have been fair and his application was dismissed.
End of year activities and events should be fun occasions for employees to gather in a social setting and reflect on the year that was but employers should remain mindful of their duties to employees.
Careful and thoughtful planning can help eliminate some of the risk and worry in advance and ensure that everyone has a safe and enjoyable time.
Reindeer: Why are Dasher and Dancer always taking coffee breaks?
Santa: Because they are my star bucks!
Should you require any further information or assistance, please contact our Managing Director Athena Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.
Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
