The festive season is nearly here and Murray Thornhill, Director, and Gemma Wheeler-Carver, Associate, in our Dispute Resolution and Employment Law teams have prepared this guide for planning your work Christmas party.
Employers have an obligation to provide a safe workplace to their employees, even at social events like your annual Christmas party or client function.
Employees have obligations to act in an appropriate manner while in the workplace and many employment contracts will require compliance with company policies and procedures. Failure to maintain appropriate behaviour can, and does, lead to disciplinary action including termination of employment. However, as an employer, you may also be liable for your employee’s misbehaviour and face claims against your business.
Inappropriate behaviour from employees can result in a claim against your business in relation to sexual harassment, bullying, or failing to provide a safe workplace. Failure to properly deal with misbehaving employees may also result in unfair dismissal or discrimination claims against an employer.
TIPS FOR EMPLOYERS WHEN PLANNING A CHRISTMAS PARTY
It is important to start putting in place strategies now, at the planning stage, to ensure that your Christmas party goes off without a hitch. Employers should ensure that they:
- Have appropriate policies and procedures, and remind all employees of their obligations under those policies. It might even be time to arrange “refresher” training on these policies in the lead up to December.
- Clearly inform staff when the party will start and end and make suitable arrangements (where appropriate) for transportation to and from the event.
- Ensure responsible service of alcohol and that plans are in place to deal with employees who over-imbibe.
- Keep in mind that not all employees may wish to celebrate the festive season, or be involved in the Christmas party.
SO DESPITE ALL THAT PLANNING, AN INCIDENT OCCURRED – WHAT DO WE DO?
Before making a decision about any disciplinary action, you should undertake an investigation into the incident to determine what happened. This may not be necessary where criminal proceedings have resulted in a “guilty” finding or admission.
During this process, you may stand the employee down, however, the employee must continue to receive their usual pay during this period (including for any public holidays during that period). The employee should be provided with notice of any allegations in writing and provided with a reasonable opportunity to respond. Any witnesses should also be interviewed and informed that the process is confidential.
Depending on the seriousness of the incident, you may choose:
- Summary dismissal (termination of employment immediately);
- Dismissal with notice,
- To issue a warning;
- The implementation of training or performance management;
- To require the employee to apologise;
- To make a note on the employee’s personnel file.
If the decision is made to terminate employment, best practice requires you to issue a ‘show cause’ notice asking you to demonstrate why employment should not be terminated before a final decision is made.
Following this process will minimise the risks of an employee claiming that you have terminated their employment unfairly. It is important that one of the reasons for your decision does not include their age, race, disability, family obligations, or another discriminatory reason, as this may entitle an employee to still make a claim against you, even if they had a slip-up at your work Christmas party.
The Commission has heard several cases where dismissal was found to be unfair on the basis that the process was not followed properly or the termination was harsh in the circumstances. These include:
Wayne Chambers v Toll Transport Pty Ltd 
Two employees of Toll were on “union delegates leave” and attended a union meeting where their employer (Toll) paid for their airfares, accommodation, and meals. After the meeting, they got drunk and had a disagreement with each other. This led to a fight (where one ripped off his own jumper). Both employees were terminated due to misconduct.
The Commission found that their termination was unfair and reinstated them, largely due to the complete privacy of the interaction (there were no witnesses associated the fight with the employer), their compliance with the investigation process, and the fact that neither had by his action indicated that he was rejecting his employment contract.
Bradley Drake v BHP Coal; Bird v BHP Coal 
The Christmas party in this matter was off-site but involved staff and families of staff so it was determined to be a work function. Two employees had a verbal and physical altercation with a supervisor, including them, punching him. Both employees were fired and both filed unfair dismissal applications.
One (Drake) was not successful and his termination was upheld on the basis that his actions were unacceptable in a work context, and there were no extenuating circumstances to mitigate his conduct.
The other (Bird) was successfully reinstated (even though the Commission found that he was involved in the altercation). He was successful on the basis that the investigation and decision to terminate were flawed and procedurally unfair.
Puszka v Ryan Wilks Pty Ltd 
The Commission held that a woman was unfairly dismissed following a farewell drinks event in which she had too much to drink resulting in publicly vomiting and requiring assistance out of the premises into a taxi. On that occasion, the Commissioner saw it as appropriate to reinstate the employee. However, this case is a little bit different as the more serious aspects of alleged misconduct by the employee, such as making disparaging remarks and propositions of a sexual nature to another employee, were not proved in fact. The Commissioner held that one single act of drunkenness, not involving aggressive or abusive behaviour or otherwise posing no serious risk to the reputation or viability of the employer’s business, did not have a direct connection with a person’s ability to perform work and was not sufficient to provide a well-founded reason for dismissal. The Commissioner did, however, suggest that there would be a sound basis on which to implement disciplinary action.
This Employer compounded their problems after failing on appeal, by failing to make a payment that was ordered (for lost pay) by the Commission. Further, they then ordered her to work at a different location and were sued for general protections (a claim for adverse action taken for a protected reason, such as your right to question the location of her work or make an application for payment of lost pay). This was resolved by agreement of the parties and Puszka ultimately resigned (presumably with some kind of financial settlement).
These matters must be carefully handled from the start, so we recommend obtaining early legal advice on your options and the most appropriate strategy. If you require any further advice or assistance regarding your obligations and rights. Contact us.