Ensuring appropriate standards of behaviour and safety at the work Christmas party will assist in avoiding legal claims, but will also ensure that the party is enjoyed by all who attend.
Christmas is a time of year when many people look forward to
winding down at work and to parties, celebrations and holidays. Many employers
reward their staff for their efforts during the year by throwing a Christmas
party, either on the premises or at an outside venue. The Christmas party
provides employees with an opportunity to relax and socialise together before
the Christmas break.
Sexual harassment
For a number of employers every year, the Christmas party
brings more than just a hangover. The New Year often sees an increase in the
number of sexual harassment claims by employees resulting from inappropriate
sexual conduct at the Christmas party by a co-worker or co-workers. Employees
whose behaviour may be exemplary throughout the year may behave inappropriately
at the Christmas party, usually because they have consumed too much alcohol.
An employer will be liable for unlawful sexual harassment
engaged in by employees or agents at the Christmas party unless it can show
that it took all reasonable steps to prevent the unlawful behaviour. In one
case, a director of the employer made unwanted sexual advances towards a young
probationary employee when they were alone together after the Christmas party.
The employee lodged a sexual harassment claim against both the company and the
director. The employee was awarded a total of $21,840 damages
(see: Dobrovska v A R Jamison Pty Ltd & Anor (1996) EOC 92-794).
Unfair dismissal claims
Sexual harassment claims are not the only legal risks that
can arise from inappropriate behaviour at the work Christmas party. If the
employer decides to terminate an employee because of his or her inappropriate
behaviour at the party, the employee may bring an unfair dismissal claim. In
one case, the employee was alleged to have engaged in the following behaviours
at the work Christmas party:
- slurred speech, stumbling around the venue, being loud and obnoxious
- flirtatious behaviour, such as sitting on one representative’s knee and laying back onto another employee with legs in the air
- revealing her undergarments
- disclosing a tattoo near her groin area.
The employer conducted an investigation into the allegation
and dismissed the employee. The employee lodged an unfair dismissal claim in
the Australian Industrial Relations Commission (AIRC) and was successful. The
Commission found that the investigation was carried out in an unfair manner,
and the company's procedures had not been adhered to. It was found that the
behaviour towards the other employees was not conduct of a sexual nature. The
employee denied knowingly revealing her underwear, and while she did show her
tattoo to a female colleague, this was not done in the manner alleged.
The Commission found that there existed a significant
problem in relation to the consumption of alcohol and associated behaviour at
company functions, which was exacerbated by the ready provision of alcohol by
the company. While the company had attempted to address this problem through
its Discrimination Free Workplace Policy, the problem still remained, with the
company having a culture of ‘working hard in the day and playing hard at
night’.
The Commission found that the termination of the employee
was harsh, unjust and unreasonable and awarded the applicant $28,745
compensation (see: Palmer v Nestle Confectionary, AIRC, U No 30525
of 1999, 7 March 2000).
Safety of employees
Ensuring the safety of employees at the Christmas party and
on their journey home is also the responsibility of the employer (as long as
the employee does not break the journey home). Employees who are injured at the
Christmas party or on their journey home may lodge workers compensation claims
or common law claims for personal injury.
Steps to avoid risks
Employers can take steps that will assist in preventing
legal claims arising out of the work Christmas party. These include:
- Reminding employees of the standard of behaviour that is expected of them before the party, for example, by redistributing the Workplace Harassment Policy, or raising the matter at a staff meeting.
- Managers should circulate during the party to ensure that no inappropriate behaviour is taking place and model appropriate behaviour themselves.
- Where inappropriate behaviour is observed by a manager, immediate steps should be taken to stop the behaviour. This may necessitate sending the offending employee home, in a taxi if necessary. Disciplinary action may be warranted on the employee's return to work, depending on the circumstances. Any such disciplinary action should be taken in accordance with the employer's discipline and termination policies and procedures.
- If an employee becomes too intoxicated he or she should be sent home in a taxi or driven home by a work colleague.
- The employer should place limits on the supply of alcohol at the party. One way of doing this is to provide each employee with a voucher entitling them to a limited number of alcoholic drinks.
- The employer should provide soft drinks, light alcoholic drinks and preferably serve food at the party.
- The employer could have facilities at the party to enable employees to test their blood alcohol level.
- If the venue for the party is off-site, the employer should provide transport to the site and back to the workplace after the party.
- The employer could ask for volunteers for non-drinking drivers and arrange carpools for the purposes of transporting employees home.
Source: Australian Business Limited.
