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Our Guide to Not Getting Your Tinsel in a Tangle this Silly Season

E-updates
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How to minimise the risks of the end of year party before, during and after the event

The end of year silly season is seen by employees as that time of the year where they can let down their hair, celebrate with their colleagues and reward themselves for their hard work. Unfortunately, the silly season is also a time that is fraught with risks for employers.

The end of year silly season is seen by employees as that time of the year where they can let down their hair, celebrate with their colleagues and reward themselves for their hard work. Unfortunately, the silly season is also a time that is fraught with risks for employers.

Company X is considering throwing an end of year event for its employees.

 

Linda is the HR Manager and Chair of the Social Committee and is tasked with planning the function.

 

As there were some issues which came up at last year's function, Linda is wondering how best to plan and manage the event this year.

With bad employee behaviour and the worst office hi-jinks in mind, in this guide we provide you and Company X with some tips on how to minimise the risks of the end of year party before, during and after the event.

Before the Event

Reminders about expected standards of conduct

Unfortunately, employers do need to set in advance the standards of conduct and behaviour expected of employees at the end of year party.

By way of a memo or in a meeting before the party, employees should be reminded that the event is a work function, that the same standards of behaviour expected in the workplace will be expected at the function and that there is the potential of disciplinary action if employees' conduct do not meet expected standards. In particular, employees should be reminded that conduct and behaviour that is sexually harassing in nature and/or which breaches work health and safety obligations will not be tolerated.

The lead up to the silly season is also a good time generally to rollout refresher trainer on the Code of Conduct or behaviour policy, together with other policies, such as work health and safety, drugs and alcohol, anti-discrimination, anti-sexual harassment, anti-bullying and/or social media policy.

 

The theme

After much debate and discussion, the social committee at Company X has settled on a beach theme for the end of year function and employees are encouraged to dress to the theme.

 

The invitations sent out to employees are met with a mixed enthusiasm. With no parameters set on the “beach theme”, Richard, an employee at Company X intends to take the theme literally and plans to wear what he normally wears to the beach – his Speedos.

 

Another employee, Julie, cannot think of anything worse than wearing her swimming costume in front of her work colleagues.

It is not uncommon for parties to have a particular theme where partygoers are encouraged to wear fancy dress or to dress to compliment the selected theme.

Where a theme party is selected, employers should remind employees about the standard of dress expected and that fancy dress costumes should not be offensive or inappropriate. Employees should also be reminded that a party should not be taken as an excuse to wear clothes that would otherwise not be appropriate for the workplace. For example, Company X can encourage employees to participate in the festivities by wearing Hawaiian shirts and maxi dresses or kaftans, rather than bikinis and Speedos.

 

The group activity

Outdoor adventure parties or parties that include recreational or physical activities, such as paintball or laser skirmish, go-karting/quad biking or bubble soccer should be carefully considered, as employers are likely to be liable for workers compensation for any injuries sustained during these activities. If a party includes a physical activity, employees should be required to wear appropriate attire (including helmets and footwear) for the activity.

 

Planning food and alcohol

Judy has been delegated the responsibility for selecting the catering at the party. She recommended the “perfect” caterer, being her sister-in-law’s best friend who has recently set up her own business.

 

Unfortunately for Judy, the caterer has not had much experience in catering for large events, arriving late to the function and forgetting to ensure that the hot food was kept hot. By the time the function room was set up, the food was not hot enough, inedible and could not be served.

Plenty of food should be planned when alcohol is being consumed. The food should be hearty and substantial, such as hot finger food or full meals.

Proper arrangements must be in place for keeping food at the right temperature or covering food where appropriate and experienced caterers should be used to ensure food safety, particularly for larger events.

Employers should cater for employees with food allergies, intolerances and dietary restrictions as the result of their personal or religious beliefs – a sausage sizzle is not for everyone. Food designated for those with allergies, intolerances or dietary restrictions should be clearly labelled.

John organises for himself and a group of his colleagues at Company X to meet at his place to “pre-game” by having a few drinks before attending the party. John and the group arrive at the venue, already a little rowdy, seeking entry into the party.

 

Venue security takes one look at John and his friends and refuses them entry as they are already intoxicated.

Employees should be advised about expectations regarding the consumption of alcohol. In particular, employees should be advised before the function that if they arrive at the party intoxicated they may be refused entry and that bringing their own alcohol to the event is prohibited. To address the difficulties of having to confront intoxicated employees, employers could consider hiring security or holding the function at a venue that provides security.

Employers should also plan a drinks menu that includes alcoholic, low-alcohol and non-alcoholic drinks. Make sure that drinking water is also readily available. Employees should be reminded to respect a colleague's decision not to drink alcohol if that is the case and should not pressure them into drinking.

 

Start and finish times

When sending out an invitation and any follow-up information about the event, employers should be very clear about the start time, finish time and location.

Employers should make it clear to all employees that any festivities that continue after the conclusion of the Christmas party or other end of year event are not endorsed by the employer and are not part of the official work function/party and on the employees’ own time.

Case study
In Stephen Keenan v Leighton Boral Amey NSW Pty Ltd [2016] FWC 3156 (Keenan), an employee drank too much alcohol at the Christmas party and was aggressive, offensive and inappropriate to colleagues. Some of the offending conduct occurred at the official work party and some of the conduct occurred afterwards in other locations.

Following the events of the Christmas party night as a whole, the employee was dismissed from his employment.

In deciding whether the dismissal was unfair, the Fair Work Commission (FWC) found that all employees had been informed of the start time, finish time and location of the official work party.

Some of the inappropriate behaviour engaged in by the employee, in particular, the sexual harassment of a female employee, was away from the location of the party and outside the times of the official party.

The FWC found that the conduct that occurred away from and after the official party did not have the requisite connection to work, such that the employer could rely upon that conduct as a reason for dismissing the employee.

Ultimately, the FWC found that the dismissal was unfair because the employer had included all the events of the evening in its decision and should have only relied on the incidents that happened at the official work party.

A strict cut-off time should apply to the service of alcohol and if possible, employees should be directed to leave the venue at the finish time.

Employers need to also consider employees' travel home from the party. For example, employers may consider organising Cabcharges or shuttle buses to public transport.

Case study
In Glenn Rogers v Allianz Insurance Australia T/A Club Marine Insurance [2017] FWC 537, an employee’s conduct in a taxi following the end of a work event was considered to be part of the event.

The employer organised a team building event at a yacht club. The employees moved from a function room to the yacht club bar. After the yacht club bar closed, a group of employees decided to go to another venue for further drinks and invited the employee to join them. Whilst in a taxi to the other venue, the employee made an inappropriate and offensive sexually suggestive comment toward a female employee.

The employee relied upon the decision in Keenan and contended that the events took place outside of the workplace and in the taxi after the team building event had finished earlier when the employees went to the yacht club bar. The FWC did not accept that the party had finished then, finding that there was not a specified finishing time of the event and that the activities in the bar were an informal continuation of the same event and not an unrelated private function. In addition, the FWC held that that the travel from the venue after the end of the event was a necessary part of the event.

The FWC was satisfied that there was a clear connection between the circumstances of the employee’s conduct towards the female employee and their employment. The FWC found that the employee’s comments in a work context were “extremely offensive and threatening” and without provocation and given his senior role, gender and short period of service constituted a valid reason for dismissal.

 

During the Event

Having done all of the right preparatory work in the lead up to the party, employers need to be “on their game” during the event. There are many factors that employers need to be mindful of, which could arise during the event and should be managed appropriately.

 

The venue

It has been a hot start to the Summer and Company X has decided to have their function at a venue overlooking the city harbour. The venue is right on the wharf and is perfect for the beach-themed end of year function.

 

Employees are standing at the water’s edge with a drink in hand, toasting to the end of a hard year’s work.

The venue of the event is an important consideration. A popular venue of choice for end-of-year celebrations is undoubtedly on or near the water – whether that is a pool, a beach or the harbour.

However, these types of locations are not without risk to the health and safety of employees, especially at a function that serves alcohol. The venue should be somewhere safe that will not place the health and safety of employees at risk – even at work functions, employers have a duty to provide a safe environment.

Case study
In Damien McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343 (McDaid), an employee claimed he was unfairly dismissed following his behaviour at an end of year work function, where he drank too much alcohol and starting acting aggressively towards a number of colleagues – one particular act was pushing a colleague into a pool on the employer’s premises.

In the context of the employee’s history of poor behaviour in the workplace generally, the FWC found the dismissal was fair and dismissed the employee’s application.

Whilst this decision was a good outcome for the employer, it is also a helpful example of the risks that could arise from having a work function on or near water – especially if alcohol is being served and the possibility that not all attendees might be capable swimmers.

 

The guests

As Company X left the reservation until fairly late in the year, they were required to share the venue with another company. The functions were separated however, both companies shared the bar.

 

One of Company X’s employees, Richard, is standing in line, waiting to make his order, when someone from Company Z cuts in front of him. Richard is not too happy about this and decides to physically confront this person.

When sharing a venue with another company, the presence of other venue patrons can introduce an unknown and uncontrollable element and can increase the chances of having unwanted party crashers. Employees need to be reminded that they are expected to act responsibly towards all attendees, not just their fellow work colleagues.

Case studies
In Hughes v Momentum Wealth Pty Ltd t/a Momentum Wealth [2016] FWC 9072, an employee was held to have been fairly dismissed following an altercation with another venue patron.

The FWC was satisfied that the patron was drunk and had bumped into the employee first, however, the employee’s aggressive reaction to the patron as well as his aggression towards his fellow employees and Managing Director who had tried to diffuse the situation, amounted to misconduct warranting dismissal. The FWC commented that this was particularly warranted given his employer had warned all staff 10 days prior to the event that they were expected to behave responsibly at the function.

In Packer v Tall Ships Sailing Cruises P/L & Anor [2014] QSC 212, two separate companies had their Christmas functions on the same boat. One company’s event was a family event but the other was not. When the second group became rowdy, an employee from the family event approached members of the rowdy event to ask them to stop swearing in front of their children. That employee was king-hit in the back of the head by a guest from the other party and, as a result, suffered serious injuries.

Whilst the Court found that the employer was not liable for the employee’s injuries, it did find that the employer owed a duty of care in those circumstances and the injuries sustained by the employee were a tragic occurrence.

To the extent possible, a list of people attending the function should be accurately recorded. Many end of year functions will allow employees' partners or spouses to attend. This can be easily managed by having a sign-in desk for attendees to register at before entering the function. This is also a good way to ensure any employees, such as John, who have already “started the party”, are prevented from entering the party.

 

The service of alcohol

Richard’s mate, George, witnesses what is happening at the bar and tries to step in but Richard pushes him out of the way.

 

At this point, Richard has had quite a few drinks since arriving at the party and tells George to “f—k off or else”.

Employers are expected to exercise some control over the way alcohol is consumed by employees. This really means that “self service” is a thoroughly bad idea and someone must be supervising access to and consumption of alcoholic drinks.

In Keenan, the FWC found, amongst other reasons, that the dismissal was unfair on the basis that the employer had failed to exercise any adequate control over the availability of alcohol despite having engaged bar staff at the venue.

As a result, the employee was never refused alcohol, which contributed to his behaviour and the particular harshness of the employer’s decision to dismiss him.

It should also be noted that employees have an equal responsibility for their own actions when drinking.

In McDaid, the FWC upheld the employer’s decision to dismiss the employee.

The FWC made particular note that the amount of alcohol a person decides to drink at a work function is entirely their choice and that choice will come with consequences. The fact that an employee has been drinking may partly explain their actions but it should not be accepted as an excuse for any misbehaviour.

The responsible service of alcohol is much easier to manage when service is provided by professional bar staff, who have been trained in the responsible service of alcohol. This will reduce the amount of over-indulgence and help to eliminate any situation where a fellow employee has to deal with the difficult situation of refusing to provide a drink to a colleague or their boss.

Another possibility for managing the service of alcohol is having a drink voucher system in place to regulate how much alcohol one employee is entitled to be served throughout the night.

Of course, under no circumstance should employees under 18 years of age be served alcohol.

 

The entertainment

Company X’s hired DJ cancelled at the last minute and now they are scrambling for the perfect party playlist. Richard is a big music buff and decides to take control of the speakers.

 

Noticing the music has made people feel a little bit uncomfortable, the Managing Director, Emma, decides to hit pause, grab the microphone and tell some funny jokes, one of which is “Sorry about that everyone – it seems Richard’s taste in music is just as bad as his work performance”.

The entertainment for the night should be appropriate and festive and employers should avoid music or entertainers that might be particularly offensive to some employees. The aim should be to promote the festive spirit and not make employees feel uncomfortable.

Many functions will also have an MC to guide the evening, provide some laughs and make light of the otherwise structured workplace. However, it can be difficult to monitor what type of jokes an MC might make and care should to be taken to ensure that MCs are aware of what they can and cannot joke about, especially if the MC is an employee.

This also extends to the conversations that employees should be having during the party. Of course, employers cannot regulate every conversation but employees should be made aware that work-related matters, issues with co-workers in the workplace or discussions about work performance should generally be avoided during such events.

 

The exchanging of gifts

The most exciting thing about “Secret Santa” is that you never know what you are going to get. However, for many employers this element of surprise leaves the door open for employees to receive gifts they find particularly insulting or offensive.

The best way to minimise this is to plan ahead and, for example, have each employee prepare a short list of gifts they would appreciate, within a set budget. By doing this, there are no unwanted or offensive surprises when Santa arrives.

After the Party

Whilst planning and managing an event is critical to minimising risk for an employer, there are issues that can arise after all the decorations have been taken down and the dust has settled.

 

Absenteeism

Richard made it home from the party and staggered into bed in the small hours of the morning.

 

Later in the morning Richard was jolted awake by his alarm, signalling it was time to go to work. Feeling the throbbing in his head and the unease in his stomach, Richard decided to “chuck a sickie” and reached for his phone to call and a leave a message for his manager – “Hi boss, it’s Richard. I’m not going to make it in today. I’m ...err ... I’ve got a sore throat and a running nose. I think I feel the flu coming on”.

The end of year silly season can get busy and so many employers prefer to plan their celebrations for nights during the working week, such as on a Wednesday or a Thursday night.

For obvious reasons, this can result in employees arriving late for work the next day, being less productive or not showing up for work at all.

The best strategy is to encourage employees to avoid drinking excessively or staying out too late on nights before they are expected to front up to the office, but this may not always be the most realistic approach.

An alternative approach may be to encourage employees who do not plan on attending the workplace the day after a function to request annual leave in advance. This gives an employer the opportunity to plan for the absence and avoid having to deal with a grumpy, tired, unproductive employee or an unplanned “no-show”. It may not be possible to grant all requests for annual leave that are received in such circumstances and so employers will need to establish some ground rules for how annual leave will be granted on such occasions – whether that be on a first come first served basis or an assessment of which role is critical at the given time.

As was the case with Richard, taking a “sickie” is a very appealing option to employees following a big night out.

Sick leave (or personal/carer’s leave as it is referred to in the Fair Work Act 2009 (Cth)) is intended for times when an employee is genuinely ill or injured such that the employee is unable to attend work. Sick leave due to a late night or a sore head is really not something that an employer should endorse.

The best approach to managing sickies is to set expectations early. Tell employees that they can request annual leave for the following day if they wish and that any sick leave taken the day after the party will require supporting evidence, such as medical certificate from a doctor, because sickies will not be tolerated.

Case study
In Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd [2017] FWC 4630, an employee was dismissed from her employment after she called her employer and left a message on the answering machine, which said:

Hi Michelle, its Avril one of your most loved pains in the arse. Um its ANZAC day, my birthday, and I admit I have over indulged, so I’m taking into account one of the golden rules – to be fit for work and I’m not going to be fit for work so I won’t be there, But um love ya, catch ya on the flip side.

Following the termination of the employee’s employment, she lodged an application with the FWC claiming that her dismissal was unfair and that she had done nothing wrong in calling in sick the afternoon after over indulging and having a late night.

In finding that the employee’s conduct amounted to a valid reason for the dismissal, the FWC stated that:

[t]he Applicant was guilty of placing herself voluntarily in a position where she was unable to work by reason of the consumption of alcohol ... Her conduct in a material way led to her own downfall.

The FWC found the employee’s conduct and her later denials that she had not done anything wrong destroyed the employer’s necessary trust and confidence in her.

Unfortunately for the employer, there were some technicalities with the way it dismissed the employee (specifically in relation to the material it relied upon), so the dismissal was ultimately found to be unfair and the employee was awarded compensation.

 

Social media

Josh had a great time at the party. He enjoys the company of his colleagues and thought that Linda did a great job with planning the event. In fact, Josh loved the party so much that he snapped, live tweeted, tagged and posted the whole thing for all his friends, colleagues and internet followers to enjoy.

 

Josh got a little bit snap-happy and took some unflattering photos, which he later posted to his private Facebook page. Some of the more questionable photos posted to Facebook were screenshot and shared amongst colleagues who are not Josh’s Facebook friends.

 

Josh’s social media activity about the party is starting to cause post-party tensions.

Social media has undoubtedly changed that way we document occasions and events in our lives and work functions are no exception.

The fall out after the party can often be felt most acutely through social media. It is, after all, not the private tool that many employees assume it is.

Employers should remind employees that the business’ social media policy (if you do not have one, you need one) applies at the work function in the same way it applies to work on a daily basis. For example, if you would not say it or show it in a meeting, do not post it or photograph it at the party.

It is important to remind employees that their posts have the potential to cause damage to an employer’s interests.

Employees should also be reminded to gain the consent of anyone in their pictures before posting them. As high as one’s privacy setting may be, social media simply is not a private forum and employees need to appreciate that their actions may have adverse consequences for their employer and that disciplinary action could result from the misuse of social media (even on an employee’s own time).

Naturally, when alcohol and high spirits enter the mix the best guidance and most clear expectations of an employer can fly out the window and so some stricter social media work around may be required.

Employers might consider banning posting on social media about the party altogether. This could be achieved by requesting that mobile phones be left at the door and collected again on the way out or at the end of the party.

Employers may also consider having a professional photographer at the party to minimise the temptation of employees to snap every moment themselves.

If an employee does post inappropriate material about the party that has the potential to damage the employer’s reputation or interests, or impact relationships between employees, the employer will likely be within their rights to direct the employee to remove the post from their social media account. Failing to do so would constitute a failure to follow a reasonable and lawful direction and could result in disciplinary action against the employee.

 

The fall out

We all know that Richard was drunk at the party, was inappropriate to colleagues and chucked a sickie the day after.

 

It is two days later and Linda, the HR manager has received a number of complaints about Richard’s behaviour at the end of year function.

Where an employer becomes aware of misconduct committed by an employee that is related to a work event, it should act swiftly.

Managers and HR team members should refer to the employer’s policy on disciplinary processes and follow the guidance set out in that policy.

When dealing with issues of misconduct, employees should always be afforded procedural fairness, including being offered the opportunity to respond to allegations made against them.

If an investigation into alleged misconduct is required, the employer should follow its policy on internal investigations or engage an expert third party to conduct the investigation.

If an employer is in doubt about whether it is appropriate to commence a disciplinary process or dismiss an employee, it should seek legal advice.

 

It's Time to Party

Now that we have got all the worst case scenarios out of the way, it is time to party!

The end of the year is a great time to reflect, relax, appreciate your colleagues and celebrate successes from the year that was.

There are certainly important risks to consider and to account for but any end of year work event should ultimately be fun.

Careful planning can take a lot of the stress out of a work event and give employees’ piece of mind that they and their colleagues will have fun and stay safe.

 

Need a laugh...

Q: What race is never run?
A: A swimming race.

 

Should you require any further information or assistance, please contact our Managing Director Athena Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.

Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

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