Legal Alert

MANAGING EXPOSURES DURING THE FESTIVE SEASON

Authors: Amy Zhang & Lauren Brouwer-French

The festive season is here!

Many employers will be celebrating the end of 2022 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, and to reconnect after a difficult period brought about by the COVID-19 pandemic, 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 Westpac Banking Corporation was dismissed after inappropriately touching a female employee at a social event at a sports themed pub organised by Westpac following a workshop, and for verbally abusing a female staff member outside the Crown Casino later that night. The dismissed employee subsequently brought a claim for unfair dismissal in the Fair Work Commission.

The Commission was particularly critical of Westpac for hosting the event at a sports-themed pub, and for providing unlimited alcohol:

“…A sports themed pub would appear to be an odd choice for an organisation purporting to be seeking to create a work environment which welcomes women and employees of diverse ethnic and religious backgrounds.…

Westpac should give consideration to whether the location they chose for networking events is one which all employees feel comfortable attending. They should also give consideration to whether the service of alcohol is necessary or even an appropriate element of work related events given the poor judgement often associated with the consumption of alcohol. If alcohol is a necessary element of the event Westpac should ensure that its employees are safe during the course of the event, that there is a clear conclusion to the event and that the safe departure of employees is facilitated.”

The Commission also observed that there is now a high bar in the community for conduct within the workplace, and that employees should be cognisant “that their ‘social’ behaviour will attract greater scrutiny and face higher standards than in the past”.

The Commission ultimately held that only the first event was sufficiently connected to the employee’s employment to constitute a valid dismissal for failing to comply with Westpac’s sexual harassment and discrimination policies and code of conduct.

In another 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 on the basis 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.”

KEY RISK MANAGEMENT RECOMMENDATIONS FOR EMPLOYERS

As we enter the festive season for 2022, 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.

Employers should also be mindful of the location they choose for their Christmas functions to ensure that all employees, regardless of gender and ethnic and religious background, feel comfortable attending.

It is also important that employers consider risk management initiatives at functions to comply with their primary duty under work health and safety legislation in light of ongoing COVID-19 numbers in the community, such as selecting a location for the Christmas function that is outside or equally well ventilated, asking attendees to return a negative RAT test prior to attending, directing that anybody that is unwell stay home, distributing hand sanitiser and antibacterial wipes, and ensuring the non-sharing of food, drink and cutlery.

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