A quick Google search for career ending moves at the work Christmas Party may be an amusing exercise. However, at this time of the year it serves as a timely and educative reminder to both employers and employees that poor management, planning and behaviour can make the annual Christmas festivities, and their aftermath, a very sobering experience indeed.  In our experience these events are notorious for being a potential breeding ground for inappropriate workplace behaviour and may put employers at risk of litigious actions such as sexual harassment, bullying, discrimination and unfair dismissal claims.

An employer owes an overarching duty to take all steps reasonably practicable to prevent the risk of injury in the workplace. Any workplace Christmas or end of year event will be considered the “workplace” and the employer will be liable for any inappropriate or unlawful behaviour that occurs, if they have not taken all reasonable steps to prevent such conduct. In the context of work Christmas parties, subtler risks can often be overlooked by employers such as the service of alcohol, at an employer’s expense, and the possibility of illegal drug taking and, in some circumstances, sexual misconduct amongst staff.

Furthermore, the meaning of a “workplace” in this context has been extended, through judicial reasoning, to include not only a principal place of business, but also social gatherings at bars, restaurant or other public venues at which organised interactions amongst staff occur.

It is therefore imperative for employers to educate staff as to what constitutes acceptable behaviour, and what kinds of conduct may give rise to disciplinary action. To this end, it is important that employers implement control measures, so their staff understand what behaviours are acceptable in the context of an event organised by the company, even if it is not on work premises or during ordinary business hours.

Examples of recommended control measures include:

  1. developing and implementing policies around appropriate workplace behaviours, and refreshing these expectations with your employees regularly and in particular before the work Christmas party;
  2. consulting with staff in relation to your expectations of their behaviour at work Christmas parties;
  3. providing training to employees on their obligations under various legislation, including in respect of work health and safety; and
  4. providing access to counselling and an EAP services provider.

At the event itself, particularly where alcohol is being served, an employer can take steps to support their duty to prevent the risk of injury by:

  1. limiting the amount of alcohol supplied;
  2. preventing employees from ‘self-serving’ by appointing suitably qualified third-party officers to serve alcohol (e.g. bar service attendants with RSA’s);
  3. commencing and concluding the event earlier in the evening; and
  4. ensuring adequate security and safety measures are in place at the venue.

Careful planning, management and control of venue are vital in mitigating an employer against the risks of litigation, for example, for unfair dismissal.  In the recent decision of Drake & Bird v BHP Coal Pty Ltd [2019] FWC 7444, one employee’s termination was upheld while another was reinstated after a physical altercation at a Christmas event. The employees believed they were at a ‘pyjama night’ (an event organised by BHP mineworkers to mark new rosters) and were thus not attending a “workplace” function.  Nonetheless, there were some 60 employees of the company, including family members, attending the function, allowing the Commission to conclude that the event was sufficiently work related as to be covered by BHP’s code of business conduct and charter values.

Uncontrolled and excessive consumption of alcohol was the principal driver in causing the altercation where an uninvited supervisor decided to belatedly attend the event and was attacked by two employees, one of whom punched the supervisor.  The Commission upheld the termination of the employee who punched the supervisor but reinstated the other.  Despite the conduct of both employees running counter to BHP’s conduct policies, the event was poorly managed and controlled by BHP and they were thus exposed to unfair dismissal litigation with mixed results.

To further highlight the different outcomes that can arise based on the planning, management and control exercised by an employer (or lack thereof), it is worthwhile to compare Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 and Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118.

In Keenan a drunken employee was dismissed for verbally abusing his boss and sexually harassing a fellow colleague. Despite the employee being warned that the usual workplace code of conduct would apply at the Christmas party, the Commission still found that the employee’s dismissal was unfair.  In Vai, an employee was dismissed for misbehaviour at a work Christmas party at which the employer also supplied free alcohol. In this matter, the employee threw a full glass of beer towards other employees.

While the former matter appeared more serious, the Commission found that the termination of Mr Keenan’s employment was unfair because employees were able to serve themselves alcohol and no one was given the task of supervising the function whereas Mr Vai’s termination was upheld because the work function was at a hotel where the serving of alcohol was controlled and where there were senior staff present to supervise.

Whilst work functions are a great opportunity to have fun with colleagues, our recommendation to surviving the silly season is to be honest with yourself as to whether everything reasonably practicable has been done to ensure all employees are safe and without risk of being subjected to offensive behaviour.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

This alert is not intended to constitute, and should not be treated as, legal advice.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article