Practical guide to a lawsuit-free Office Christmas Party

Posted on Oct 29, 2015 by Terry Morgan   |   Categories: Employment Law

Should you regale the entire staff with your somewhat racist and definitely sexist joke? Is the office Christmas Party a good opportunity to make your move on Julie in accounts? If you don’t know the answer to questions like these, then you really need to read on, suggests employment lawyer TERRY MORGAN.

With the festive season and holiday break fast approaching, it is important for employers to remind employees about acceptable standards of behaviour at the workplace Christmas party.

While end-of-year celebrations can promote office relationships, increase staff morale and are an ideal opportunity for management to thank their employees for their services throughout the year, it is not uncommon for the festivities to get out of hand.

Christmas Party Conduct

Office Christmas parties often are work-related activities, and as such employers have an ongoing duty in relation to sexual harassment, discrimination, bullying and workplace health and safety.

It is important to remind employees that the rules that apply at work also apply to work functions, even though the activity is occurring away from the usual workplace and outside typical business hours. Employers can be held liable for employees’ actions while attending after-hours functions and as such all workplace policies should be adhered to by employees.

7 Practical Tips to Minimise Risk

To prevent complaints and potential litigation following the Christmas party, employers should endeavour to take the following steps:

  1. Ensure workplace policies and codes of conduct are up to date and have been circulated to employees.
  2. Send a friendly reminder to employees prior to the party reminding them of their responsibilities – including that they are still ‘at work’ when attending the party.
  3. Set a clear finishing time for the party.
  4. Follow responsible service of alcohol guidelines.
  5. Provide food and non-alcoholic drinks.
  6. Ensure management lead by example.
  7. Make it clear that festivities which continue after the party are not endorsed by the employer.

The Morning After – Ramifications for Bad Behaviour

The most common workplace complaint post-Christmas party is sexual harassment, and can include unwelcome touching and familiarity, suggestive comments and jokes, inappropriate gifts and invasive personal questions.

If employees do not meet the expected standards of conduct, employers should ensure that appropriate action is taken in the following days, and in accordance with usual workplace policies and procedures.

An employee owes their employer an implied duty of good faith as well as a general obligation of mutual trust. Conduct which breaches these duties can on occasion justify termination of employment, if the conduct objectively:

  • is likely to cause serious harm to the employer-employee relationship; or
  • harms the employer’s interest.

Would you throw fuel on a fire? –  Then Don’t Throw an Open Tab on the Bar!

A recent decision by the Fair Work Commission has found in favour of an employee who was dismissed for drunken and unruly behaviour at a work Christmas party where alcohol supply was free, unlimited and unmonitored. The case involved an employee, who behaved inappropriately after consuming in excess of 10 beers and a vodka and coke (not to mention his 2 pre-party beers). Prior to the party, all employees were generally informed that expectations for workplace conduct expectations applied at the party. However, no indication was made that these expectations would apply beyond the physical confines of the party’s venue.

Significantly inebriated, the male employee made offensive and explicit remarks to a number of colleagues at the party. Once he left the party venue to attend a bar with colleagues, his behaviour deteriorated further, using increasingly explicit language, telling his bosses to “f–off” and making unwanted sexual remarks and advances towards a female co-worker. The employee, who was employed as a team leader for a leading road infrastructure joint venture, was dismissed upon returning to work.

The Fair Work Commission outlined two key reasons why his dismissal was unfair;

  1. that it was not made clear that his conduct outside of the venue was also subject to workplace policies; and
  2. the fact that his employers provided copious amounts of alcohol was a “mitigating factor” for his conduct and thus he could not be held accountable to the degree necessary for dismissal.

This case provides a timely warning for employers, that they may not be in any position to insist on codes of conduct at work functions where unlimited amounts of free alcohol are provided.

Take Home Message for Christmas 2015

Whether an employer can dismiss or discipline an employee for poor or inappropriate conduct after hours is a controversial topic. Generally employers only have a limited scope to regulate employees’ behaviour outside of work hours, but the key considerations are whether the behaviour of an employee can be sufficiently connected to the person’s employment and whether there were any “mitigating factors” contributing to their behaviour.

If you require any advice or assistance in this area, please contact our employment lawyer, Terry Morgan. Call Baker Love on (02) 4944 3322 or contact us here.