Christmas is a great time of year but unfortunately, work functions can be fertile ground for incidents that lead to not only WHS claims but also: sexual harassment, sex based harassment, hostile work environment, sex discrimination, victimisation (collectively the Respect@Work obligations), plus bullying, adverse action, unfair dismissal and privacy claims as well.
The case of Sione Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118 (11 July 2018) is often relied on as demonstrating FWC’s resistance to people behaving badly at a Christmas function. In this case despite being counselled by three section leaders to calm down or leave the premises, the heavily intoxicated worker from a distance of about five metres threw his beer glass in the direction of a security guard, spraying seated workmates when it smashed against a lamp. He was successfully dismissed for serious misconduct – even though he claimed he had no recollection of the event – because the employer had taken reasonable mitigatory steps to prevent such behaviour and had not simply created a ‘help yourself -free for all’.
The principles of this case were more recently escalated in John Keron v Westpac Banking Corporation [2022] FWC 221 (4 February 2022) where FWC provided a warning of a ‘higher bar’ when considering consent to physical and sexual interactions in work-related environments when upholding the sacking of a senior manager with 35 years experience who touched a junior colleague's buttocks in an after hours networking event and then abused another employee who attempted to prevent him accessing another venue soon after. Binet DP said it was "no longer the case that alcohol consumption can be an excuse for one employee to touch another intimately or that by attending and participating in social activities related to the workplace employees are inviting or welcoming being touched inappropriately".
The positive duty for the Respect@Work obligations is no longer ‘new’. Employers now have multiple proactive and preventative obligations to ensure that Christmas functions are safe for their employees and others who attend (eg clients, customers, food and beverage staff etc). Similarly, it will be difficult for workers to claim ‘ignorance’ of their escalated personal behavioural obligations. With extensive media coverage and social discourse on the issues, everyone is on notice that their 'social' behaviour will attract greater scrutiny and face higher standards than in the past.
Our Take
No one wants to be the ‘fun police’ but contemporary community and legal expectations have changed and employers need to adapt accordingly to a ‘higher bar’.
Christmas functions are nearly always found by courts and tribunals to be events where employees are considered ‘at work’, even if the function takes place after hours and at a separate location. And further the ‘line’ between the ‘official function’ and the ‘after party’ is a blurry one where it is more likely to be found to have some connection with the workplace than not.
Similarly, managers might need to adjust their own expectations and behaviours given the likelihood that courts and tribunals will generally hold them to higher levels of account and responsibility.
Action Items
Consult within your management team and workforce and agree to the parameters of what type of function you can safely manage – this may involve reviewing previous functions, assessing case studies of other organisations (good and bad) and taking advice from venue providers etc;
Set a clear ‘tone’ for reflecting what the management expectation is – Your workplace culture shouldn’t take a ‘break’ during the Christmas holidays. Our retainer clients can access and tailor our recommended template letter to employees reminding them of their obligations at your Christmas function. If you would like to get access to the documents we provide to our retainer clients, please contact us;
Conduct a risk assessment – apply appropriate control measures eg external venue, security, transport vouchers, non-alcoholic options, foods, time limits, drink limits, restricted access to certain types of drinks, RSA, under 18 and new employee options, diversity and inclusion issues, photography etc;
Designate roles for your management team and reinforce the expectation in terms of ‘modelling’ safe behaviour – eg designated ‘non-drinkers’ for supervision, coordinating transport, photography, RSA, contact officer support, clean up, complaints and incident management, deb-brief for next year etc;
Review policies and procedures to ensure contemporary compliance – Workplace Behaviour, Code of Conduct, Alcohol and Drugs, Grievance Procedures etc and conduct refresher sessions;
Conduct toolbox meetings or similar to remind employees that workplace functions like the Christmas function still involve the same standard of appropriate workplace behaviour.
Edge Legal
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