Christmas is nearly upon us and everyone in the workplace is looking forward to kicking back and celebrating the end of another busy year.
Everyone, that is, except for Human Resources – who are tasked with the unenviable job of attempting to navigate the legal minefields scattered throughout the festive season, without being branded the office Fun Police.
In the face of increasing penalties for contraventions of bullying and sexual harassment laws, now more than ever employers need to be aware of their responsibilities when it comes to end of year celebrations, and to take steps to ensure the safety of their employees and protect themselves against vicarious liability for the transgressions of their staff.
The consumption of alcohol in particular has the potential to create risks to safety and result in unprofessional and even criminal behaviour. Employers have a duty to serve alcohol responsibly, and to take all reasonable steps to guard against risks arising from drinking at work-related functions. Where an employee is injured, or otherwise exposed to harm arising from intoxication at a work function, an employer can be held liable if it induced or encouraged the excessive consumption of alcohol, and may end up on the receiving end of a workers’ compensation claim.
Further, where employers dismiss inebriated employees who engage in misconduct at work functions, the Fair Work Commission will not necessarily hold those employees to ordinary standards of behaviour when determining whether or not the dismissal was unfair. In the 2015 case of Keenan v Leighton Boral Amey NSW Pty Ltd, the Fair Work Commission warned:
“…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.”
Examples of legal action arising from a work-related function include:
Importantly for employers, their responsibility does not necessarily end once the drinks stop flowing and the lights go up, as they can still be held vicariously liable for the unlawful actions of their employees outside of work hours, where the impugned conduct is connected to their employment. In a notable decision earlier this year, an employer was ordered to contribute to an award of over $300,000 in compensation for sexual harassment, which took place whilst two of its employees were staying in employer-funded accommodation.
Unless you plan on hosting 2017’s most boring office Christmas party, it is not possible to eliminate all risks associated with the festive season. However, there are some important steps employers should take to manage those risks, including:
Finally, if all else fails, retreat to a corner with a glass of wine and remind yourself that the office Christmas party only happens once a year.
Authors: Ben Marshall & Hannah Dunai
Benjamin Marshall, Partner
T: +61 3 9321 9864
Charles Power, Partner
T: +61 3 9321 9942
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
Michael Selinger, Partner
T: +61 2 8083 0430
Rachel Drew, Partner
T: +61 7 3135 0617
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.
Published by Benjamin Marshall, Hannah Dunai