Regardless of the time of day or location, work Christmas parties are activities undertaken “in the course of employment”. This means employers owe employees a duty of care even though the function is not occurring in the usual workplace. Even though the function might occur out of hours or offsite, employers continue to be responsible for their employees, particularly in relation to workplace health and safety, discrimination and harassment and bullying.

Another responsibility for employers is ensuring that staff members under 18 years of age do not consume alcohol. Although function venues also have responsibilities regarding responsible service of alcohol and non-service of alcohol to minors, it may not be possible for staff at the function venue to identify minors and depending on the way in which alcohol is served, it may be easily accessible to all attendees (such as on the table). Employers should ensure that employees who are under 18 are identified and made known to the function venue. Although this may initially seem embarrassing for those involved, it is a necessary precaution.

The following cases are examples of where festive fun has gone too far.

In Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156, a male employee arrived at his work Christmas function intoxicated but continued to consume alcohol. During the course of the function, he sexually harassed a number of employees and made disparaging remarks to others. At no time was he prevented from accessing alcohol at the function.

Following the function, the employee participated in two meetings with his employer regarding his behaviour. The employer considered that the employee had engaged in serious misconduct and the employee was dismissed.

The employee subsequently brought a claim for unfair dismissal. The Fair Work Commission held that the dismissal was unfair because:

  • the employee had not been provided with procedural fairness as he was not given an opportunity to respond to the allegations;
  • the employee had not been provided with procedural fairness as he was not given an opportunity to respond to the allegations;
  • the employer had provided unlimited amounts of alcohol at the function; and
  • the employer had failed to ensure responsible consumption.

The outcome of the case may have been different had the employer taken steps to:

  • ensure that all employees understood the employer’s expectations prior to the function;
  • ensure that all employees understood the employer’s expectations prior to the function;
  • ensure that the employee was not served alcohol at the function following his arrival at the premises intoxicated;
  • ask the employee to leave the function or escort the employee from the premises on becoming aware of his behaviour towards other employees;
  • nominate a manager or senior staff member to supervise the function;
  • properly investigate the allegations following the function.

In Canny v Primepower Engineering Pty Ltd [2015] WADC 81, a number of employees attempted to ignite an old engine after consuming large amounts of alcohol at a work function. When one of the employees poured petrol into the engine, it created a fireball and the employee suffered burns to 60{be55c6c07c471121cc3850f9feff6a8f85af23d57771442bf9ae827882bc107a} of his body.

The employee sued his employer for negligence. The employer denied liability arguing that it was not unsafe for workers to start an engine but that the employees themselves had used the petrol unsafely.

Ultimately, the employee was successful and the employer was criticised for breaching its duty of care by allowing “free flowing” alcohol at the function.

Cases such as these can easily arise if precautions are not taken to manage the safety and behaviour of employees at work functions. Employers should take the following steps to ensure a fun and fire free festive season:

  1. Tell your employees the start and finish time of the function and make it clear you do not endorse any activities which go beyond the finish time.
  2. Remind your employees of appropriate workplace behaviour and that they are expected to behave appropriately regardless of the time or location of the function.
  3. Ensure employees understand and accept your policies, particularly in relation to harassment, safety, social media and alcohol and drugs, and know the consequences of breaching those policies.
  4. Conduct a compulsory pre-function training session and record the names of the attendees.
  5. Have a system in place for identifying those employees at the function who are under 18 and ensure that those employees are not served alcohol.
  6. Control the service of alcohol at the function and serve food and non-alcoholic beverages.
  7. Nominate a person to remain sober to oversee the function and address inappropriate behaviour promptly, such as by sending people home or closing the bar.
  8. Provide safe transportation options to your employees and if necessary, provide them with taxi vouchers or arrange a mini-bus.

If you require assistance with training your employees, notifying them of the expectations for their behaviour at the Christmas function or updating your policies, please contact Sarah Stoddart.