What happens if employees are too ‘merry’ this festive season?

It’s known as the silly season, but what happens if employees are too ‘merry’ at the staff Christmas party?

What happens if something is said in poor taste? There is unprofessional and/or inebriated conduct? There is unwelcome sexual innuendo and conduct? Inappropriate comments are made in jest?

January is traditionally one of my busiest times of the year because I manage the repercussions of a Christmas get-together gone wrong.

There is a fine line between understanding the risk and liability but also encouraging staff to celebrate at the end-of-year Christmas party.

Employers might wish to consider the following prior to any festive get-together.

Clarify the scope of the event

Specify the hours which will constitute the “official” work Christmas party. Any private arrangements between employees afterwards would not form part of the Christmas party. Employees bear their own risks when attending non-official events.

Ensure staff are reminded workplace policies will apply during the “official” event.

If non-employees are attending (such as family members, guests or clients), consider reminding employees, in writing, of appropriate standards of behaviour.

Make sure staff do not feel pressured to attend the event through incessant invitations and peer pressure. In the case of Youngblutt vs Workers’ Compensation Regulator [2019] QIRC 100, it was found that the employee felt pressured to attend out of fear for her employment due to numerous emails being sent to her.

Conduct refresher training on policies

If there is a code of conduct or appropriate behaviour policy in place, consider undertaking refresher training in advance of the Christmas party with employees. Are appropriate safeguards in place for pictures being taken by employees at the Christmas party? Are there any social media policies in place?

Ensure your senior employees are reminded of the need to supervise junior employees and display exemplary behaviour consistent with workplace policies. And make sure health and safety takes a primary focus to avoid instances such as those which occurred in the case of Australian Leisure & Hospitality Group Pty Ltd vs Simon Blackwood (Worker’s Compensation Regulator) & Campbell [2014] QIRC 105 when an employee was killed after diving into a shallow creek during a Christmas party.

Have a sharp focus on sexual harassment

What constitutes sexual harassment?

• Conduct that is sexual in nature.
• The conduct is unwelcome.
• The conduct is done either with the intention of offending, humiliating, or intimidating the target; or in circumstances where a reasonable person would have anticipated the possibility that the target would be offended, humiliated, or intimidated.

It is important to note that sexual harassment does not have to be repeated or continuous to be against the law. A single act can be unlawful. Ensure there is emphasis on your sexual harassment policies.

The test for an employer is, have they taken all reasonable steps to prevent sexual harassment in the workplace?

• Training will assist.
• Guidance around what is appropriate.

Providing employees with a copy of the Queensland Human Rights Commission’s Fact Sheet: Sexual Harassment is one way to help with this issue (or the relevant fact sheet for your state or territory). Make it known that the intention does not matter as the test is whether a reasonable person would find the comments, action, behaviour, etc as offensive, humiliating or intimidating.

Planning ahead of the Christmas party

Inform employees who they can confidentially report their concerns to in the event of an incident at a work Christmas party. And be prepared to conduct an investigation at short notice.

If alcohol is being consumed, ensure employees are not drinking to an excess and increasing the risk of injuring themselves. Manage health and safety obligations such as by ensuring employees are provided with transportation.

Explain potential consequences

In the matter of Keenan vs Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 at paragraph 140, vice president Hatcher stated that the appropriate course of action for an employee who had made undesired and romantic sexual propositions to another employee and further had kissed another employee was the following:

“I have earlier indicated that a proportionate response to Mr Keenan’s misconduct would have been to demote him from the position of team leader (with a commensurate reduction in pay), issue him with a warning (perhaps a final warning), require him to make a written apology for his conduct, and ban him from attendance at any future Christmas functions or other functions where alcohol is served.”

Showing this reference as an example to staff in order to demonstrate what action an employer can reasonably take may aide in deterring inappropriate actions.

Jonathan Mamaril is a director at Employment Law (offices in Queensland, NSW and South Australia).

Note from the editor: This article has been prepared for informational purposes only and is not to be construed as advice (legal or otherwise).