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The festive season involves celebrations! These celebrations tend to incorporate (free!) alcohol and all of the risks and implications that follow.
Work-organised Christmas functions are arranged for the purpose of thanking staff, building morale and creating a collaborative, happy work environment. However, the combination of alcohol and being ‘off site’ together often in non-work attire can lead to reduced inhibitions and behaviour that would not normally be expected in a work environment. This can create significant risks for employers in terms of the safety of employees. In the context of client functions, there can also be embarrassment and brand damage.
The following legal issues should be considered in that context.
The Work Health & Safety Act 2011 requires persons conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of employees and other persons.
Christmas parties and client functions are undertaken as part of the conduct of the business or undertaking.
Employers should undertake a risk assessment of the event, including taking into consideration the venue, number of attendees, alcohol to food ratio and so on. This will enable the PCBU to identify potential and foreseeable risks and hazards with a view to being able to implement control measures to ensure the safety of those in attendance.
The duties of PCBUs (including officers such as directors and managers) are non-delegable. It is paramount that PCBUs can demonstrate that safety risks were properly considered and appropriate measures were put into place, including to avoid a ‘liability hangover’ the next morning.
State and federal anti-discrimination laws provide that employers must be able to demonstrate that they have taken ‘reasonable steps’ to educate staff about offensive behaviour that could potentially constitute harassment (including sexual harassment) in the workplace.
Courts are more than willing to view Christmas parties and other ‘celebratory out-of-hours events’ as connected to the workplace and an extension of the working environment. This can even apply to ‘kick ons’ at nightclubs or similar after the work-related-event.
Employers should be aware of their vicarious liability for the actions of their employees. Directors and officers policies and employment practices liability policies often contain molestation and harassment exclusions.
It is vitally important that:
Employers should be sure to serve alcohol responsibly.
The case of Keenan v Leighton Boral Amey Joint Venture  FWC 3156 involved an allegation of unfair dismissed in the context of a termination after inappropriate conduct at the work Christmas party. The reasons given for the termination included that Mr Keenan had made unwelcome romantic proposals to a female colleague, kissed another colleague at a bar after the party, and swore at managerial colleagues at a taxi stand.
It was held that Mr Keenan’s termination was unfair. VP Hatcher commented in his decision that
‘…it is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol at the function. If alcohol is supplied in such a manner, it becomes entirely predictable that some individuals will consume an excessive amount and behave inappropriately.’
Workers compensation exposure is triggered in the context of an injury (including a mental injury) arising out of or in the course of employment. Workers compensation liability can and will arise as a result of injury and offence caused at Christmas parties.
We would suggest that the festive season is a timely trigger for employers to review workplace policies on drugs and alcohol, harassment and health and safety.
Staff should be reminded of those policies and requested to review their obligations in the context of the functions arising at this time of year.
In terms of the organisation of the functions, employers should:
It is important for employees to be conscious that their attendance at a work or client function is not the same as being out socialising with friends on the weekend. Work- appropriate attire and conduct is required. To assist with this, employees should:
Further information / assistance regarding the issues raised in this article is available from the author, Emma Reilly, Partner or your usual contact at Moray & Agnew.