Ho Ho Ho – Tips to ensure your work function doesn’t end in tears (or worse, a claim)

The festive season has officially arrived! Whilst work Christmas parties are a fantastic way to celebrate a successful year, it is important that employers and employees alike remain cautious and aware of their responsibilities when hosting or attending a work function.

Christmas parties are notorious for safety-related incidents. With the recent passage of the Respect@Work Bill, employers have a positive duty of care to ensure that the work functions are safe, supervised and reduce the risk of sexual harassment and discrimination.

For the record, a Christmas party has been determined by the Fair Work Commission to be a work-related function attracting responsibilities on both the employer and employee.[1]

A key issue at work functions is the supply of alcohol. Employer’s must ensure that they remain compliant with any responsible service of alcohol restrictions that may be imposed in their state or territory. As such, employers should organise work functions that are properly supervised, managed and supplemented by food and activities. A cost-effective solution is to allocate staff members, particularly in managerial roles, to assume a sober supervisory role.

In circumstances where an employee consumes excessive alcohol at a work-approved function, the employer has an obligation to ensure that the employee is safely transported home. We recommend employers invest in taxi vouchers or hiring a shuttle bus.

Vicarious liability does not disappear during the festive season. Employers may still be held liable for their employee’s actions or wrongdoing at a work function, further emphasising the need for stringent safety and supervisory measures. To mitigate this risk, they must show that they took all reasonable steps necessary to prevent any wrongdoing. Consequently, employers should use a workplace function as a reminder to reassess their workplace policies to ensure that appropriate policies and reporting mechanisms exist that allow for internal complaints that are addressed in a timely manner.

In short, employers have a duty to:

• ensure employees are aware of its policies with respect to work-related functions, emphasising any discrimination, bullying and sexual harassment policies;
• inform employees whether certain functions constitute work-related events;
• facilitate a safe and controlled environment where there is consumption of alcohol;
• remind employees on prohibited activities such as drinking games;
• prepare a guide on how to report any anti-social behaviour both during and after the event, including the process taken where an investigation of conduct is required;
• provide a clear end time of the event and outline any organised, appropriate ways of getting home; and
• explicitly state that any events following the function that may be seen as an ‘after-party’ are not condoned by the employer.

An employee must be aware that the same standard of behaviour expected in the workplace is expected at a workplace function. They must continue to follow any applicable policies or standards that govern their workplace.

Ultimately, employees:

• owe a fiduciary and in some circumstances, a contractual duty to act in the best interests for their employer;
• must not act in a manner contrary to workplace policies and their employment contract;
• must not engage in conduct as to indicate a rejection or repudiation of the employment contract;
• should be aware that any misconduct will be subject to a workplace investigation that may result in disciplinary action including (but not limited to) termination; and
• where an investigation of an event is undertaken by an employer, must cooperate fully with the investigation.

In the case of McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343, the Commission ruled in favour of the employer who terminated an employee, where the employee had engaged in unacceptable behaviour and misconduct at the staff Christmas party.

As we head into the midst of the silly season, employers should ensure that they:

• review their current policies to ensure they address the expected standard of conduct for all employees when attending work events;
• send a memo to all its employees prior to the event outlining the company’s policies and code of conduct; and
• warn employees that a breach of the company’s policies may result in disciplinary action.

The Workplace Law Team at Chamberlains Law Firm can assist with preparing and reviewing your policies and procedures.

[1] Drake & Bird v BHP Coal Pty Ltd [2019] FWC 7444.