Somehow, it is that time of year again; there is tinsel in the stores, everything tastes like ginger, and your calendar is filling up with events. Whilst we can’t assist you with baking or decorations, Aitken Legal is here to help ensure your workplace celebrations are remembered for all the right reasons.

Set out in this article is a practical, five step guide, along with some cautionary tales of ghosts of Christmas parties past as a reminder of what can go wrong. Follow these steps to ensure your business is prepared for the festive season, and protect both your employees and your bottom line.

‘Tis the Season… for sensible planning

To help you navigate the silly season with confidence, we have outlined five key steps to keep things festive, fun, and (legally) fine:

1.   Set clear expectations

You should ensure that your workplace behaviour policies address conduct both at work and at work-related functions. In particular, you should ensure that your sexual harassment policies are up to date.
Queensland employers should ensure that a sexual harassment prevention plan is in place, and employers generally should take into account their positive duty to eliminate (as far as reasonably possible) unlawful sex-based conduct.

2.  Remind employees of company expectations

Without proper training, your policies will be given little weight by a court or commission. Ensure you communicate with your employees prior to the Christmas (or any other) function and remind them of your policies and expectations.

While these functions are often a chance for employees to ‘let their hair down’, they should be made aware that usual behavioural standards still apply, and disciplinary actions may result from any breaches.

3.  Plan ahead

Parties do not absolve you of workplace health and safety obligations. To help avoid any cause for concern:

• Ensure you provide sufficient food and non-alcoholic beverages in addition to any alcohol.
• Treat open bar tabs with caution. If alcohol is to be provided, designate a (preferably senior) person to supervise consumption and manage risks.
• Set clear start and finish times for your function. If employees wish to continue celebrating after the finish time, remind them it should occur at a different venue and outside of work to avoid continuing to be liable for any conduct arising after the official Christmas party has ended.
• Consider pre-arranging travel arrangements for the end of the function, such as taxi vouchers or other similar options. Employers may be liable where an employee is injured travelling to or from work (or work functions)!

4.  Model good behaviour

Make sure your leaders model good behaviour from the “top down”. Owners, managers and supervisors should ensure that their behaviour is meeting a high standard during the workplace function, including ensuring that they are complying with the relevant workplace policies.

5.  Be proactive about any complaints

If concerns or complaints about alleged conduct at the Christmas party are raised (either during or after the event), be proactive in addressing those concerns or complaints, and (where appropriate) seek legal advice.

Tales from the tinsel trenches

The following cases offer practical reminders on the types of issues that can arise during workplace functions and shed some light on how the Courts and Commissions view employer obligations during these events.

1.  Connection to work – Return to Work Corporation of South Australia v Valentine and Karrara Hair and Beauty Centre
An employee slipped and fell when exiting a spa bath at a work Christmas party which was intended to allow employees to ‘let their hair down’. It was held that the employer acquiesced to the spa bath activity, having conversed with the employees without any apparent concern.

In finding that the concept of letting one’s hair down had changed from a frank conversation about love in a Jane Austen novel to ‘circumstances of their employer providing unlimited alcohol, a male stripper and a spa bath’, it was held that employment was a significant contributing cause to the injury.

This matter serves as a reminder that activities that might not initially seem connected to work can still form the basis for a valid claim, especially where those activities are endorsed or acquiesced to by an employer.

2.  Importance of investigations – Drake & Bird v BHP Coal Pty Ltd and Ryan Wilks Pty Ltd v Trudi Puszka

In Drake & Bird, two employees were terminated after an incident at a Christmas party. The employer’s investigation established that the employees punched a supervisor in the face, and one employee asked a female coworker if she had “fake tits” and indicated “all the girls” at that site had them. The employees then lodged unfair dismissal applications. As to one employee, the Commission found that the evidence did not establish (on the balance of probabilities) that he had punched the supervisor. Accordingly, it held, a warning would have been appropriate and ordered reinstatement with partial backpay. As to the other employee, the termination was upheld.

In Ryan Wilks v Trudi Puszka, the employer alleged that the employee consumed a considerable number of drinks, sexually propositioned a staff member, made disparaging remarks, vomited on the floor of the bar, and was escorted to a taxi by friends. While the employee admitted to some of the conduct, she denied the allegations regarding sexual propositions and disparaging remarks.

Evidence from the allegedly sexually harassed staff member stated that he was not propositioned at all and that, even if she had propositioned him, given she was drunk, he would likely not have been offended. Despite this, the employer “confirmed and relied upon this false allegation as the gravest aspect of the serious misconduct for which the applicant was summarily dismissed”. The Fair Work Commission held that the dismissal was unfair and ordered reinstatement with backpay, commenting that “if one act of inoffensive drunkenness at an after work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.”

These matters highlight the importance of conducting a thorough investigation following any incident and ensuring that any grounds relied upon are based in fact.

3.  Reasonable steps – Vai v ALDI Stores

An employee was dismissed for misbehaviour at a work Christmas party at which the employer supplied free alcohol. In this matter, the employee threw a full glass of beer towards other employees. This incident occurred after the employee had been counselled by managers to settle down or leave.

The Commission found the dismissal to be fair. ALDI was able to demonstrate that the termination was reasonable and in line with its policies on workplace behaviour because it had taken steps to show that it was maintaining its code of conduct, such as through the limited service of alcohol, and the hiring of security guards at the Christmas function. This was deemed acceptable even though ALDI did not communicate to staff prior to the event that they had to abide by the code of conduct.

The Commission was also not convinced that the employee should be able to avoid taking responsibility for his actions, which is what he was seeking to do by seeking to set the termination aside. With this in mind the employee’s termination was upheld.

Bonus tip – Christmas rostering

If you have not already done so, you may also wish to consider your rostering arrangements in the lead up to Christmas. The recent decision in Mining and Energy Union v OS MCAP Pty Ltd (No 3) reinforces that employers must make requests, not demands, where they require employees to work on a public holiday.

Under the Fair Work Act 2009, employees have a right to be absent on public holidays without loss of pay. An employer may make a request to its employees to work on a public holiday, but employees may refuse if the request is not reasonable or the refusal is reasonable. In this instance, it was found that the employer denied the employees this right, and the employer was ordered to pay $83,700 to the employees plus a further $15,000 penalty to the employee’s union.

If you require employees to work on public holidays over the holiday period, keep in mind that your request must be reasonable, and that you must consider any reasonable refusal by your employees. Subjecting an employee to adverse action as a result of any reasonable refusal may give rise to a general protections claim.

Takeaways for employers

Christmas parties are a great way to build team spirit and wind up the year, but it is a fact that they come with significant risk if proper precautions are not implemented.

Accordingly, you should ensure that you clarify expectations, plan ahead (including in respect of catering, transport, and getting off risk), model good behaviour, and treat any complaints seriously. By taking your duties seriously and implementing these measures you can help ensure that your party sleighs for all the right reasons.

If you have any questions about this update or if you need assistance with any of your employment matters, please contact our experienced Employment Law team.