With the festive season almost here, many businesses are ready to start planning their end-of-year celebrations. Despite all the mirth and morsels, these functions are still considered work-related events, which means you’re still obligated to ensure your staff, and those within the vicinity, are safe.    

Given the recent updates to workplace health and safety legislation, it is recommended you plan to avoid festive fumbles that could put your business and staff at risk from claims. 

Below are several recommendations to help mitigate risk moving into the season’s celebrations: 

Have a clear start and finish time 

The event should have a designated start and finish time. This ensures that employees are reminded they are still in work time. However, any time after the official end is not considered time worked.     

Have your responsible person 

It is recommended to have someone volunteer to be a responsible individual. The individual will help keep an eye on any behaviours that may be of physical or psychosocial risk. The responsible person should ideally be decided several weeks before the event.    

Formalise your function 

After confirming dates, times and event details it is important to send a formal reminder to staff with clear standards of behaviour that is expected during workplace functions and the ramifications of failing to follow such standards (ie. disciplinary consequences as provided within your relevant policies).

Policies 

Ensure you have up-to-date policies attached when sending correspondence to staff. The most common policies include those relating to code of conduct, sexual harassment, bullying, and workplace health and safety.    

Before the big day 

It is important to send out an email before the event emphasising the required standards and expected behaviours. It serves as a reminder to staff of disciplinary actions if they do not continue to respect workplace standards at the event.  

Home time 

Ensure there is a safe way for employees to get home, especially those who have been consuming alcohol. Ideally, someone (ie. responsible person) should stay with the employee until it can be reasonably taken that they are OK to be taken safely home in a taxi, or other form of transport

Legal considerations   

It is important for businesses to understand that there can be legal implications if clear expectations of behaviour are not set. These can include claims such as:    

Unfair dismissal claims   

If an employee believes their termination was unreasonable, harsh or unjust (as seen in the case example Vai v ALDI Stores). In this case, the Fair Work Commission (FWC) rejected (the employee) Vai’s unfair dismissal claim on the basis that his behaviour at an ALDI Christmas party, including throwing a glass across the room, warranted ‘misconduct’ in that it caused serious and imminent risk to the health and safety of those in the vicinity. 

It emerged that although the employee pre-drank in his own time, and there were no managers in attendance, the party itself was still funded by ALDI and therefore a ‘work event’.  

The core takeaways include the need to put in place solid boundaries around alcohol consumption; clear guidelines on expected conduct; and a need to organise these events in a way where you mitigate the crossover of personal events (pre-drinks) and work drinks.    

Stop sexual harassment/bullying order   

Employees may apply to the FWC for a stop sexual harassment/bullying order.  

Bullying under the Fair Work Act 2009 (Cth) (FW Act) includes repeated unreasonable behaviour towards another worker or group of workers, that creates a risk to health and safety.    

Some examples are:  

• verbal bullying eg. teasing, name calling, insults;  
• physical bullying eg. taunting an employee by stealing their belongings and hiding them, shoving them, standing over them and intimidating them repeatedly; and  
• excluding and targeting an employee/group of employees.  

A person sexually harasses another person if: 

• they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or 
• they engage in other unwelcome conduct of a sexual nature in relation to the person harassed;

circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The intention of the alleged harasser is not relevant. 

Sexual harassment can include conduct such as: 

• inappropriate staring, leering or loitering 
• unwelcome touching 
• suggestive comments or jokes, insults or taunts based on sex, or sexual gestures 
• using suggestive or sexualised nicknames for a person 
• persistent unwanted invitations to go out on dates 
• intrusive questions or comments about a person’s private life or body 
• unnecessary familiarity, such as deliberately brushing up against a person 
• displaying material of a sexual nature in the workplace 
• communicating sexually explicit material in person or through phone calls, online interaction, email, social media or text messages. 

Sexual harassment can cause physical and psychological harm. It can have a wide range of negative impacts, including feelings of isolation, loss of confidence and stress or depression. 

General protection claims   

If an employee believes they are adversely affected by having raised a workplace right or complaint, or based on a protected trait, they may be able to apply for general protections claim.  

 To find out more information, call the Employee Relations Advice Centre (ERAC) at CCIWA on 08 9365 7660 or email [email protected].