News & Insights

As we enter the festive season, Christmas parties and other celebratory work events are front of mind for many employees.

Despite the social character of these occasions, workers should be reminded they are still attending as representatives of the business. This means:

• employees who behave poorly can be subject to disciplinary consequences; and
• employers can also potentially be vicariously liable for their conduct.

the limits of christmas spirit

The Fair Work Commission is often called upon to clarify the degree to which an employee’s ‘out-of-office’ behaviour can be relied upon by their employer as grounds for termination.

One recent example involved two employees of BHP, Mr Drake and Mr Bird, who were dismissed from their employment following their violent conduct towards another BHP employee at a Christmas party. One of the employees was also accused of making sexually inappropriate comments to a female colleague.

BHP terminated both employees after finding their conduct was in breach of the BHP Charter Values and the BHP Code of Conduct. Mr Drake and Mr Bird argued that the work function was not organised by BHP and therefore any misconduct was irrelevant to their employment with BHP.

The FWC rejected this argument, stating that the Christmas event was within the realm of the employment relationship because:

• catering at the event was paid by BHP;
• transport was provided by BHP; and
• there were flyers distributed for the event at BHP.

The FWC held that the employees’ conduct during the party could provide a valid reason for dismissal, although one of the applications was dismissed.

lessons for employers

Employers should be aware that the wide ambit of the employment relationship cuts both ways. Employers are obliged to take reasonable steps to anticipate, moderate and respond to inappropriate interactions among employees before, during and after a Christmas party or similar event.

To avoid being left with a legal hangover, employers should:

• remind employees of relevant workplace policies and expected standards of conduct through pre-function communications (for example, through the invitation or via email);
• clearly set the parameters for the function (start and finishing time, and that after-parties are not organised or encouraged by the business);
• remind staff about responsible consumption of alcohol, actively monitor alcohol consumption throughout the event and intervene by cutting people off from service of alcohol where appropriate;
• consider whether any social media policy addresses the potential risks of impulsive posts and uploads that could be tied back to and reflect poorly on their business;
• caution and/or remove any staff member who is behaving inappropriately during an event;
• deal promptly with any issues or complaints which arise in the aftermath of work functions; and
• make sure to conduct regular refresher training on workplace policies, including those relating to alcohol, sexual harassment, bullying and appropriate workplace behaviour generally.

If you need any assistance taking the proper precautions or dealing with the fallout from a badly-behaved party guest, please contact a member of our Employment, Safety and Migration team.