With the festive season rapidly approaching, businesses are gearing up for Christmas work functions, but as we all know alcohol and employment don’t necessary pair well. When things get ‘out of hand’ at a Christmas party the ‘hangover’ for employers can last well beyond the morning after.
We all know that employers are responsible (or vicariously liable) for the actions of their employees at the workplace, this also extends to work functions. So how can you, the employer, minimise your liability if one employee drinks too much egg nog, gives an inappropriate Secret Santa gift, tries to take advantage of the mistletoe. Here are some suggestions:
- Set the ground rules by way of a Code of Conduct or Drug and Alcohol Policy or Sexual Harassment/Discrimination/Bullying policy.
- Communicate the company expectations/rules/Policy to your employees and the consequences of inappropriate behaviour (e.g. written warning, termination of employment). This can be through an email, staff meeting,
- Ensure that everyone has read and understood above. You should take attendance records at the staff meeting or, if communicating by way of email, ask each person to responded stating that they have read and understood the expectations/rules/Policy.
- Just for good measure remind everyone at the start of the Christmas party that they are to behave appropriately etc.
As the employer you also have a responsibility to ensure that your employees are behaving appropriate, not drinking excessive amounts of alcohol, provide low and non-alcoholic beverages and have a decent amount of food available for people to eat while having a few drinks.
In Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156 (26 June 2015) the Fair Work Commission (FWC) found a team leader who lost his job after conducting offensive behaviour at a work Christmas Party to be unfairly dismissed. The FWC stated that it was self-defeating for the employer to expect the usual code of conduct when providing “unlimited service of free alcohol” at a work function.
In this case the employee had consumed 13 drinks on the night, including two beers before he arrived and a vodka and coke at the ‘after party’ which was held at the same venue to the Christmas party. At the Christmas party he told one of the Directors to ‘F off’ when he attempted to join a conversation, did the same to a Senior Project Manager, asked a female colleague for her number and said to another “who the F are you? What do you even do here?”
During the ‘after party’ he described one female employee as a ‘bitch’, tried to kiss another on the mouth, telling her he was going to go home and dream about her. On the way to another venue he told another colleague that it was he “mission” to find out the colour of her undergarments.
Although the former employee’s behaviour was fairly aggressive and intimidating, the dismissal was deemed as harsh as the FWC found that the former employees conduct was an isolated incident and the employer had not applied their sexual harassment policy consistency throughout the company.
In Daley v GWA Group Ltd T/A Dux Hot Water, the FWC found the automatic dismissal of an employee who reached a blood alcohol level of 0.076 to be unfair as she had breached the company’s drug and alcohol policy only once, when the policy permits three breaches before dismissal. By contrast, in McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343 (22 January 2016) the FWC upheld the dismissal of an employee who repeatedly pushed and poked a workmate at a Christmas party before, without warning, pushing him into a pool. Not only was the employee drinking excessively but he had previously been verbally abusive to colleagues in the workplace.
These cases highlight the importance of:
- Ensuring that employees conduct themselves appropriately at work functions
- Having workplace policies and ensuring employees are trained and understand the policies, and
- The employer acting immediately and applying the policies and procedures consistency.
Here are a few more suggestions for you for this Christmas season:
- Set clear start and finish times and do not serve alcohol beyond this time.
- Encourage employees to know their own limitations when it comes to alcohol consumption and ensure management lead by example.
- Ensure that the venue is close to safe transportation home and advise employees that they should not drive if they intend to drink.
- Inspect the venue for possible hazards and make potential risk areas out of bounds.
- Appoint a senior employee to stay sober to oversee the function, which may include taking appropriate action to address escalating behaviour i.e. sending people home or closing the bar.
- Deal with all complaints immediately and in accordance with your company policies and procedures.
To prepare your business for the Christmas season, the National Retail Association are offering a dazzling and festive deal to all members!
Click here to access NRA Legal’s November discounts.
If you would like to enquire about our policies, please contact the National Retail Association hotline on 1800 RETAIL (738 245).