Legal Alert

MANAGING EXPOSURES DURING THE FESTIVE SEASON

The festive season is here!

Many employers will be celebrating the end of 2019 with their employees, with many work Christmas functions beginning to be celebrated across the country.

Work Christmas functions are a great opportunity to celebrate and have fun with your colleagues, but, as is still too often the case, work Christmas functions can become a source of considerable distress when inappropriate employee conduct at these functions puts employers at risk of claims of sexual harassment, bullying, adverse action, and unfair dismissal.

One cause of this inappropriate conduct that can expose employers to such claims is a lack of diligence in relation to the serving of alcohol at work-related events. For example, an employee of Leighton Boral Amey NSW Pty Ltd was dismissed after consuming excessive alcohol at a work Christmas function in 2014 and making unsolicited sexual propositions towards a female colleague and forcibly kissing another. The dismissed employee subsequently brought a claim for unfair dismissal in the Fair Work Commission.

Vice President Hatcher held that despite the inappropriate conduct occurring, the dismissal was unfair. In reaching this conclusion, VP Hatcher observed 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.”

Further examples of where inappropriate conduct at a work Christmas function has resulted in unfair dismissal proceedings before the Fair Work Commission include two employees of a mining company who were dismissed following a physical and verbal altercation with a supervisor; an employee at an engineering firm who pushed a colleague into a swimming pool and then assaulted the General Manager who had asked him to leave; and a warehouse operator who threw a beer glass and its contents in the direction of other employees.

In the first two of these cases, the dismissals were held to be fair on the basis that the employees’ behaviour was unacceptable in the circumstances. In the third case, the dismissal was found to be fair on the basis that the function was held at a venue where the supply of alcohol was controlled, and senior staff were present to supervise.

KEY RISK MANAGEMENT RECOMMENDATIONS  FOR  EMPLOYERS:

As we enter the festive season for 2019, we remind employers to have regard to the following practices in order to minimise their exposure to claims arising from inappropriate conduct at Christmas functions:

• Ensure that there are appropriate workplace policies addressing harassment, bullying, and discrimination in the workplace;
• Remind employees prior to the function of the company policies and expectations of behaviour at work Christmas functions;
• Ensure that access to alcohol at Christmas functions is via trained wait staff only, so that employees are not able to “help themselves” to the fridge or the esky where alcohol is stored;
• Ensure alcohol is provided at a venue where responsible service of alcohol requirements are followed;
• Task a manager with supervising the conduct of staff at the function, including appropriate alcohol consumption, and have an action plan if something goes wrong;
• Do not let the function “run itself”. The employer has a responsibility to manage, monitor and take responsibility for the running and conduct of the event; and
• Provide employees with access to taxis or a shuttle bus to get home, depending on where the function is being held.

ASSISTANCE FOR EMPLOYERS:

Harmers can assist employers with reviewing company policies for ensuring appropriate workplace behaviour, providing legal advice should an incident occur, and conducting workplace behaviour training. If you need advice throughout the festive season, please contact our team on +61 2 9267 4322. We are open for business as usual except for the public holidays of Christmas Day, Boxing Day and New Years Day.

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Disclaimer: This news alert provides a summary only of the subject matter covered without the assumption of a duty of care by the firm. No person should rely on the contents as a substitute for legal or other professional advice.