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  7. All I want for Christmas (is to keep my job): A festive season guide for employees
10 Dec 2020

The festive period is here and Gemma Wheeler-Carver, Associate in our Dispute Resolution and Employment Law teams has prepared this guide to help ensure your headaches from the holiday season don’t last into 2021!

Christmas party employees in article

Employees have obligations to their employer to act in an appropriate manner while in the workplace and many employment contracts will require compliance with company policies and procedures, even at social events like your annual Christmas party or client function. Failure to maintain appropriate behaviour can, and does, lead to disciplinary action including termination of employment.

But how much can your employer control your behaviour when you’re not in the office or on site?

The Fair Work Commission has stated that the circumstances in which ‘out of hours’ conduct might constitute a valid reason for dismissal are generally limited to cases where the conduct, viewed objectively, is:

  • Likely to damage the employment relationship;
  • Likely to damage the interests of the employer; or
  • Incompatible with the employee’s duty to the employer.

An employer may have grounds to terminate your employment for your behaviour out of work including criminal conduct, drug and alcohol use, physical and verbal abuse, moonlighting and some social media use.

Remember, what happens at the Christmas party (and after-party!) doesn’t stay at the Christmas party.

The relaxed atmosphere at events can lead to employees forgetting about their ongoing obligations as an employee, including the requirement to:

  • Act in the best interests of your employer;
  • Contribute to a healthy and safe workplace;
  • Avoid bullying and harassment of colleagues; and
  • Comply with company policies and procedures, and reasonable directions by your employer.

So what do you do if you’ve slipped up?

Depending on the seriousness of the incident, your employer may choose to:

  • summarily dismiss you;
  • dismiss you with notice,
  • issue a warning;
  • require you to undertake training (for example, bullying and harassment training);
  • require you to apologise to those involved;
  • make a note on your personnel file.

Before making a decision about any disciplinary action, your employer should undertake an investigation into the incident to determine what happened. During this process, your employer can stand you down on full pay. Notice of any allegations should be provided to you in writing, and a reasonable opportunity to respond provided. If the decision is made to terminate your employment, best practice requires a company to issue a ‘show cause’ notice asking you to demonstrate why your employment should not be terminated.

It is important to carefully consider and respond to all correspondence during this time, and we recommend that you seek legal advice at the earliest possible opportunity.

If you consider that your employer has terminated your employment unfairly, or on the basis of your age, race, disability, family obligations or another discriminatory reason, you may still have a claim against them, even if you had a slip-up at your work Christmas party. The timeframe to make these types of claims are extremely short (as little as 21 days) so it is important to seek early advice from your legal advisor or contact the relevant Commission (Fair Work or Western Australian Industrial Relations) as soon as possible to find out your options.

HHG Legal Group can assist you

If you require any further advice or assistance regarding your obligations and rights, please contact Gemma Wheeler-Carver at 1800 609 945.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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