“Beware the work Christmas party!” – motherly advice that both employers and employees do well to heed

As the holiday season approaches, businesses and their employees are looking forward to relaxing together at work Christmas parties and celebrating the end of another challenging COVID-19 impacted year. However, the festive season also brings the familiar apprehension at the prospect of employee misconduct and other workplace health and safety risks arising at work-related events.

As the drinks start to flow, the borders of an employer’s responsibility and control over risks and behaviour at the festivities can become blurred, along with the attendees’ vision. This article explores what employers can and should do to address employee misconduct at work Christmas parties.

Do my work health and safety duties extend to work Christmas parties?

It is well established from Fair Work Commission (FWC) and Court authorities that work functions are considered part of the ‘workplace’ for the purposes of a business’s workplace health and safety (WHS) obligations.

Employers are therefore obliged to take reasonable steps to prevent the occurrence of bullying and harassment, sexual harassment, or other forms of misconduct which pose risks to the health and safety of employees and others attending work Christmas parties.

When can I dismiss employees for misconduct at work Christmas parties?

While work Christmas parties are clearly considered to take place ‘in the workplace’, employee conduct at these events generally remains ‘out of hours’ conduct. FWC decisions on dismissals arising from work Christmas parties have confirmed that ‘out of hours’ conduct may form the basis of a valid dismissal only where the conduct:

(a) when viewed objectively is likely to cause serious damage to the relationship between the employer and the employee; or

(b) damages the employer’s interests; or

(c) is incompatible with the employee’s duty as an employee.[1]

Essentially, the conduct must be of such gravity or seriousness as to indicate a rejection or repudiation of the employment contract in order to be the subject of disciplinary action.

What do these additional requirements mean?

For misconduct at a work Christmas party to constitute a valid reason for termination, the specific behaviour relied on by the employer as falling within one of these categories needs to be substantiated through a thorough and procedurally fair workplace investigation.

In the memorable example of Puszka v Ryan Wilks Pty Ltd,[2] an employee drank to excess at a work Christmas party in a public bar at the Sydney Opera House, vomited on the floor of the venue, and had to be physically assisted to leave the premises. The employer also alleged that Ms Puszka made insulting remarks, and ‘sexually charged’ comments bordering on sexual harassment, towards other employees.

The employer relied on these four allegations in dismissing Ms Puszka, arguing that because the Sydney Opera House was the employer’s major client and the incident occurred in front of senior Sydney Opera House management and the public, the alleged conduct seriously jeopardised the reputation and viability of the employer’s business.

However, the employer’s workplace investigation had failed to substantiate the allegations of the offensive or sexually explicit comments, leaving only Ms Puszka’s admitted conduct of drunkenness and vomiting as the reason for dismissal.

The FWC held that Ms Puszka’s dismissal was unfair, stating famously that “frankly, if one act of inoffensive drunkenness at an after work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.”[3] Ms Puszka was reinstated to her job.

How should I prepare for my work Christmas party?

Employers have to discharge their WHS obligations at the work Christmas party, including by taking disciplinary action where appropriate, while observing the additional requirements for disciplining employees in relation to ‘out of hours’ conduct.

We recommend employers provide refresher training on workplace policies and codes of conduct, especially social media policies, and inform staff that these policies apply at work-related events. All allegations of misconduct should be investigated immediately and thoroughly to determine the truth of what occurred, and the normal show-cause process for dismissals on grounds of misconduct should be followed.

We also recommend that employers plan proactively for WHS at Christmas parties, considering measures for the responsible service of alcohol, adequate venue security, and adequate transport for employees from the venue.

These WHS obligations now also include undertaking risk assessments and implementing reasonably practicable control measures to mitigate the risks of the spread of COVID-19 in the circumstances of the workplace Christmas party and associated health impacts.

Takeaways

In the lead up to the silly season, NRA Legal has been working proactively with a number of major brands to review their compliance with WHS obligations in relation to workplace sexual harassment, especially in view of recent amendments to the Fair Work Act 2009 (Cth) following the Respect @ Work Inquiry and Report.

NRA Legal can assist to undertake a sexual harassment awareness audit which comprises different forms of support depending on each employer’s needs, including an auditing program to assess compliance, training for management and staff in preventing and responding to workplace sexual harassment, and assistance in addressing specific incidents. The initiative supports members to proactively address workplace sexual harassment as a health and safety risk as required under the new laws.

If you are interested in taking part in this initiative, or otherwise require assistance in respect of any of the matters raised above, please contact the NRA Legal team on 1800 572 679.

[1] Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156; Drake v BHP Coal Pty Ltd; Bird v BHP Coal Pty Ltd [2019] FWC 7444; applying Rose v Telstra Corporation Limited [1998] AIRC 1592 (4 December 1998).

[2] [2019] FWC 1132 (‘Puszka’); upheld on appeal, see Ryan Wilks Pty Ltd v Trudi Puszka [2019] FWCFB 3323.

[3] Puszka (n 2) [62] (Cambridge CMR).