LEGAL UPDATE

MANAGING EXPOSURES DURING THE FESTIVE SEASON

Authors: Jenny Inness and Jen Smith

The festive season is here!

Many employers will be celebrating the end of 2023 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 they can become a source of considerable distress when inappropriate employee conduct occurs at these functions. Employers need to be particularly vigilant in relation to the serving and availability of alcohol at Christmas events, and recognise that alcohol frequently plays a significant part in the unlawful behaviours at end-of-year events, including sexual harassment and bullying behaviours.

Current case law demonstrates that the Fair Work Commission (Commission) has been highly critical of employers who have failed to ensure employees’ safety during the course of 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 recent example arising from last year’s corporate Christmas events, radio broadcaster Chris Smith was terminated from his employment at radio network 2GB in December 2022, following complaints about his behaviour towards several women after a work Christmas party at The Establishment in Sydney. Mr Smith was stood down on the Sunday after the Christmas party after allegedly making lewd comments towards several female colleagues and for allegedly touching one woman inappropriately. It was later announced that Mr Smith would not return to the network and that Mr Smith had been terminated because of his behaviour at the Christmas party event. Whilst this case was not the subject of public legal proceedings, it is demonstrative of a shift towards a zero tolerance approach to inappropriate workplace behaviours such as those displayed by Mr Smith last year. Mr Smith’s case serves as a timely warning for all companies and employees involved in organising and attending Christmas parties this festive season.

KEY RISK MANAGEMENT RECOMMENDATIONS FOR EMPLOYERS

As we enter the festive season for 2023, 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;
• Give real consideration as to whether alcoholic beverages should or should not be served at the event;
• If alcohol is being served, put in place reasonable limitations including for example, restrictions on the types of alcoholic beverages available, a limited timeframe for when alcohol is available (with start and finishing times); and ensure employees have access to food and non-alcoholic beverages;
• 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, , directing that anybody that is unwell stay home, distributing hand sanitiser and antibacterial wipes, and ensuring the non-sharing of food, drink and cutlery.

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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