Tuesday 7th July 2015
What happens when a Christmas
work function gets out of hand…
In today's Health & Safety Bulletin:
- Two cases to learn from when planning your Christmas function – one for the employer and one against.
Welcome to the middle of winter. You might be one of those people that likes to put on some sort of mid-Christmas bash for friends, family or even workers during this time.
More likely, you might be scrabbling already to book that pub or that function room for December, in a deadline for end-of-year parties that creeps up earlier every year.
But July has a different significance to some employers who are dealing with the aftermath of the last Christmas party.|
It can mark half a year of dealing with an unfair dismissal claim in the Fair Work Commission, a workers’ comp claim for drunken antics gone painfully wrong, or defending their vicarious liability for harassment.
So what’s the solution? It’s hard to blame employers for getting the jitters about out-of-hours conduct on the business’s coin – especially when anything can conceivably happen to a work offsite.
More than ever, it’s imperative to understand what risks you are expected to control as an employer – and which risks you aren’t.
Unfairly dismissed for drunken harassment?
You might have read in the Fairfax papers last week about an employee at Leighton Boral Amey Joint Venture who was dismissed after a particularly big night last year.
At his workplace Christmas function, he swore at a company director, confronted a younger female employee and asked “Who the f*** are you? What do you even do here?”, and repeatedly asked a second female co-worker for her phone number.
When the function wound up, a number of workers ‘kicked on’ in the public bar next door. There, the employee called a third female co-worker “a stuck up b****”, kissed a fourth female co-worker on the mouth without her consent and made a comment of a sexual nature to her, and finally made comments of an inappropriate nature to a fifthfemale co-worker while waiting for a cab.
At his hearing (Keenan v Leighton Boral Amey NSW Pty Ltd  FWC 3156) the FWC found that for the purposes of considering dismissal for misconduct, only the employee’s conduct at the function itself could be assessed – not what he got up to afterward.
Even so, some of his behaviour at the function itself was a valid reason for dismissal. Even so, the FWC held that his dismissal was unduly harsh.
Now, that was for a few reasons, including some defects in HR procedure, and the fact that other workers had been treated differently in the past.
But the big take-away was that his employer’s failure to exercise any real control over the service of alcohol at the Christmas function weighed towards a finding that the dismissal was harsh.
FWC Vice President Hatcher called the employer’s attitude to the function “contradictory and self-defeating”. In other words, if you expect your workers to comply with your usual workplace standards of conduct – don’t go ensuring the unlimited service of free alcohol!
There’s another important point to make here. When evaluating whether the fired employee’s behaviour after the work function amounted to workplace misconduct, the FWC found that it was definitely sexual harassment – but that his employer wasn’t vicariously liable for it.
But beware – this is only one case, and the connection between out-of-hours conduct and an employer’s vicarious liability remains blurry.
If you’re putting on a big knees-up, simply assuming that what your workers get up to afterwards won’t come back to implicate you is still foolhardy.
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|Queensland court finds that Xmas party violence was ‘unforeseeable’|
Fairfax suggested that the work Christmas party may become an “alcohol-free zone” in light of the decision and mounting concerns over vicarious liability.
But if you serve alcohol and something goes wrong at your function, are you automatically in the firing line? Not necessarily, as a wise decision from Queensland’s Supreme Court demonstrated last year.
Packer v Tall Ship Sailing Cruises Australia P/L & Anor  QSC 212 involved an employee who attended a Christmas function on a boat where alcohol was served with food in a supervised environment.
Unfortunately, when the employee approached a group of people from another party that was on the boat and asked them to watch their language because children were present, he was punched in the side of the face, sustaining serious injuries.
He sued both his employer and the ship operator, arguing both owed him a duty of care to prevent the violent situation from occurring.
But the court didn’t agree – although it affirmed that an employer has an obligation to take reasonable steps to ensure the safety of its workers, the possibility of another group of individuals becoming violent was not one an employer could exercise control over.
Nor was it reasonably foreseeable in the circumstances that such a random act of violence would occur.
Picture a similar situation on dry land – if a nasty drunk from outside your workplace happened to turn up at the same place your well-planned function was being held, should you be liable when they pick a fight?
Thankfully, most court decisions make a distinction between the kind of trouble that’s reasonably foreseeable – and the kind that isn’t.
That said, clearly defining the time and location of your workplace function is just best practice.
You can start to think of all the things that could go wrong if you proposed an official Christmas pub crawl. And you can imagine the kind of questions a court would ask about why you thought it a good idea!
Start planning now
I mentioned at the start of the email that you probably need to be booking your Christmas functions now to avoid disappointment.
Similarly, you want to start thinking about how you can make sure the function meets your existing high standards of health and safety. Health & Safety Handbook Editor-in-Chief Michael Selinger offers a detailed look at the different kinds of work-related functions out there, and what you need to prepare for each, in his dedicated handbook chapter on work functions (Chapter M2, if you’ve got it handy).
Editor, Health & Safety Bulletin
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