Legal E: Avoiding a Nasty Hangover for Employers this Christmas

It’s almost Christmas which for many companies means time for the Christmas party. Inevitably, some employees are prone to ‘over indulging’ and there is the real risk of bad behaviour. By laying some ground rules and expectations, you can make dealing with the aftermath of any fallout much less painful. 

In a recent case heard by the Fair Work Commission, it was alleged an employee became extremely drunk at a staff Christmas party. During and after the party, he abused one of his bosses, sexually harassed a female co-worker, bullied another, kissed a third, made lewd comments to a fourth and generally acted unpleasantly and aggressively.  He was dismissed for his behaviour by his employer but was reinstated by the Fair Work Commission.

You might wonder how this decision was reached. The Fair Work Commission considered that the employer had no basis to discipline the employee for his behaviour after the party because it was not perceived to be out of hours conduct of the type over which the employer has control. Employers legally have no control over their employees’ private behaviour unless the conduct is so bad that it will cause real damage to the employer’s business, or working relationships within the business.

As for the behaviour at the Christmas Party itself, most of it was not serious enough to warrant dismissal and the Fair Work Commission found that the behaviour was contributed to by the employer’s lack of planning and control of the party as well as the unlimited supply of alcohol it provided.

With this cautionary tale in mind, when holding a work function and dealing with any consequential behaviour, consider the following:

1. Make it clear to your employees that attending the Christmas party and any after party is part of their  employment duties, specifying the parameters of what that means;

2. Ensure employees understand what sort of behaviour is expected at both the Christmas party and after party and reinforce what is appropriate, particularly regarding drunkenness, bullying and sexual harassment;

3. Monitor and control alcohol consumption at the party and have people in authority supervising the party;

4. If bad behaviour occurs, consider first whether the behaviour occurred during the employment or out of hours, and if it was during the latter, whether the behaviour was serious enough to come under your control;

5. Don’t make a “knee jerk” decision, investigate what occurred quickly but thoroughly, ensuring you have the full facts and not just second hand tales;

6. Consider the employee’s past behaviour, work record and their length of service;

7. Be consistent – if you have condoned worse behaviour in the past, it will be difficult to now take a hard line;

8. Consider if a lesser penalty than dismissal is appropriate.

Hopefully, with these tips in place you can start the new year without a nasty hangover from the ghosts of Christmas parties past!  

This article was prepared by Elizabeth Olsson, Senior Solicitor at Mellor Olsson.

For further information or assistance, please give us a call.

  

Joanna Andrew, Partner 
Ph: (08) 8414 3454 e: jandrew@mellorolsson.com.au 

Tim Mellor, Partner
Ph: (08) 8414 3416 e: tmellor@mellorolsson.com.au

  

  

Elizabeth Olsson, Senior Solicitor   Ph: (08) 8414 3413 e: eolsson@mellorolsson.com.au

Thea Birss, Senior Associate 
Ph: (08) 8414 3415                          e: tbirss@mellorolsson.com.au

  

Maria Demosthenous, Senior Associate 
Ph: (08) 8414 3418 e: mdemosthenous@mellorolsson.com.au

The contents of the e-alert are for general information only. They are not intended as professional advice - for that you should consult a solicitor or barrister, or any other suitably qualified professional such as your accountant.

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