Ms McKenzie’s practical guide to a lawsuit-free Office Christmas Party

Posted on Dec 14, 2013 by Private: Rebecca McKenzie   |   Categories: Employment Law, Social Media Policies, Unfair Dismissals

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 REBECCA MCKENZIE.

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

Christmas parties 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 the 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.

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 consideration is whether the behaviour of an employee can be sufficiently connected to the person’s employment.

If you require any advice or assistance in this area, please contact our employment lawyer, Rebecca McKenzie. Call Baker Love on (02) 4951 5766 or contact us here.