Dealing with the ‘legal fallout’ of the festive season

Workplace festivities can uncover lessons for HR professionals on a range of matters such as misconduct, policies, psychosocial hazards, and how best to manage investigations.

In a recent HR Leader Podcast episode, Michael Mead (pictured), partner at Kingston Reid, reflected on how issues over the past 12 months are reshaping best practice for HR with insights from his nearly 25 years of experience in the legal profession working across union negotiations, collective agreements, industrial disputes and dealing with organised workplaces.

Compliance and flexibility continue to be important issues

As the year begins and off the back of end-of-year festivities at work, Mead predicted that from the get-go, compliance and flexibility will continue to be significant issues workplaces will face in 2026.

“Requests for flexibility with a range of other matters that are happening in the Fair Work Commission, both at the award level and also with individual disputes… will continue to be a bouncing ball that people will need to keep an eye on,” Mead said.

Mead said that January is usually a profoundly busy time for HR departments. It is a time when projects for the forthcoming 12 months are being set up, and businesses need to react to things that might have happened at the end of the year, he added.

This period is one where workplaces need to manage the risks and consequences associated with inappropriate conduct, Mead noted. “It serves as a relevant reminder for HR professionals to look at some of the forward-looking things that might be relevant,” he said. For Mead, relevant steps that HR departments can take to stay proactive include reviewing policies for training in sexual harassment and bullying.

Armed with reflection: A spectrum of conduct

Mead noted that in January, complaints or grievances rolling over from last year will begin emerging from workers “armed with reflection”. He said that these may be things that the workers want to ventilate or a perspective pushing back on management directives they would have otherwise complied with had it not been for the break.

There is a “spectrum of conduct” during the end-of-year party period, Mead said. He said that it should not be a surprise to employees that companies will enforce standards of behaviour and conduct for events such as the Christmas party.

Speaking about conduct during Christmas parties, Mead said: “One of the most important [things] is…to communicate that…the standards of behaviour and the policies that dictate what is appropriate workplace conduct still continue to apply”.

Mead stressed that HR departments need to know how to appropriately manage risk and deliver consequences when people step outside of the boundaries of appropriate workplace conduct. To manage the “spectrum of conduct”, Mead emphasised that HR departments must adopt clear processes to manage the evolution of issues surrounding inappropriate behaviour at work.

“The way in which issues around employee conduct, employee behaviour and misconduct and safety-related issues are investigated is going to be particularly important because ultimately that is the anchor point from which good decisions are being made.”

Compliance: ‘A challenging area for HR’

Classifying sexual harassment as an active risk in all workplaces and thus the importance for appropriate management and mitigation of risk is “really fundamental…[for] good business practice”, Mead noted.

However, Mead stressed that dealing with the “legal fallout” resulting from poor risk management is equally important. He urged HR departments to establish appropriate policies that reflect definitions of inappropriate behaviour (such as sexual harassment), be clear about the consequences for misconduct, and provide training in this context, such as active bystander training

In addition, Mead noted that training must also teach leaders how to effectively lead on compliance issues from the front and from the highest levels. Finally, he noted that HR departments must apply an appropriate risk management strategy that outlines how workers can report on indicators that something has occurred or signs of potential risks that need to be faced and addressed.

“The compliance piece I think in particular will continue to be a challenging area for HR,” Mead said.

HR departments must ensure that they are resourced appropriately and that effective and streamlined processes are established to manage both volume and complexity, Mead said.

‘A multilayered approach’

Over the past 12 to 18 months, Mead noted that there has been a strong shift towards a multilayered approach to risk management and ensuring that the right culture and policies are established to facilitate appropriate behaviour in the workplace.

He noted that the fundamental reason for this is that the boards are “acutely aware of the risk and consequences associated” with circumstances that may lead to brand and reputational damage.

Mead brought to light examples from last year, such as the landmark Mad Mex case which saw $305,000 rewarded to an employee who experienced sexual harassment, and the Coldplay kiss cam incident.

“We're really seeing a shift in the way in which society expects these issues to be managed, borne out by not only consensual interactions, but also the way in which things like sexual harassment are being managed,” Mead said.

Closing the gap

In addition, Mead highlighted the uptick in unfair dismissal and general protections cases filed with the Fair Work Commission in the last 12 months.

“There is a discourse in relation to some of these issues that might lend people to feel more empowered and more engaged to prosecute their rights,” he said.

“Individual rights have been more deeply communicated either by regulators, by the trade union movement or just by popular media.”

Mead attributed this to the advent of ChatGPT and AI platforms that present a way of deconstructing some of the barriers that might have previously existed to making applications.

“The iterative process by which ChatGPT can effectively create content I think does mean that it's a lot easier to, in a very short period of time, flesh out the bones of an application and then find that being filed in the Fair Work Commission against an employer.”

Mead predicted that there will not be a circumstance where workers’ rights will be diluted by the government through the reviews of the Fair Work Act and the National Employment Standards.

On the contrary, he suggested that there will inevitably be a review that sees legislative change to enhance workers’ rights and the level of rigour that needs to be applied to some decisions.

“HR needs to engage with that and also then make sure that the business is appropriately educated so that they can deliver on those compliance obligations,” he concluded.