‘Tis the season for legal action

by External11 Dec 2015
It’s a time to celebrate – but employers should also be aware of their legal obligations when it comes to end-of-year celebrations, writes Lisa Burrell.

As the festive season approaches, HR professionals are again faced with an interesting balancing act – the opportunity to reward offset against the inherent risks that arise with staff functions.

Staff parties can act as a great motivational tool and can promote a sense of team within your workgroups. Many organisations view end-of-year functions as an opportunity to reward staff for their hard work; however, the combination of alcohol, high spirits and poor judgment can be a risky one. In light of the risks, a number of employers are opting to utilise alternative approaches such as family friendly BBQ’s, comedy acts or other alcohol free options.

The work end-of-year party is generally considered an extension of the workplace and therefore employers' and employees' obligations remain in place. Employers need to be aware of the range of issues that may arise, which can include sexual harassment or offensive behaviour, ill-thought out Christmas gifts and inappropriate or practical jokes.

In 2015 we have again seen a number of cases against employers related to work gatherings, both from our direct work with employers, and in published decisions. In one case, an insurer was successfully able to deny coverage to an employer who was facing significant liability in respect of injuries sustained at a workplace function. The court found that the employer had not taken appropriate precautions in respect of health and safety, including the provision of ‘free flowing’ alcohol.[1]

In a concerning outcome for employers managing post-function complaints, an employee won his unfair dismissal case[2], after being terminated for behaviours during and following the staff Christmas party. This was in part based upon the Fair Work Commission’s analysis and view of a lack of necessary workplace connection to events occurring after the official function. This is not a clear cut distinction, however, and each case will turn on its facts. By way of example, in other circumstances the Federal Court previously found that a pub where staff met up – unrelated to a work function – constituted a workplace for the purposes of the Sexual Discrimination Act.[3]

Given the complexity of these issues, what steps can – and should – employers be taking if holding a staff function?

Plan well in advance. This should include time to ensure all staff are clearly aware of the expectations the employer, that workplace policies continue to apply, and that disciplinary action can be taken for breaches of these policy. Function times should also be communicated well in advance so that there is a clear ‘end point’ to the official function.

Logistics such as sufficient food, non-alcoholic drinks and transport home should also be considered. While the provision of transport may not be necessary, details of transport options and ensuring that intoxicated staff don’t drive should form part of your plan.

On the day, it is important to have key people – generally the management team – who will be monitoring and managing any issues that arise. A check of the venue should be conducted in advance for any physical OHS issues, as well as ensuring that all planned and requested items are in place.

Post party, it is important that any claims are dealt with promptly, impartially and transparently. Determining whether the behaviour complained about is connected to the ‘workplace’ can be a complex issue for employers and if in doubt, seek professional advice on next steps.

For more information, download our factsheet here 


 

Lisa Burrell is the general manager of the Victorian Employers' Chamber of Commerce and Industry (VECCI). VEECI is Victoria’s most influential employer group, servicing over 15,000 Victorian businesses per annum. An independent, non-government body, VECCI was founded in 1851 by the business community to represent business.