Off site antics – Preparing for the office Christmas party

The Melbourne Cup has come and gone, so it is time to organise your Secret Santas and the finer details for the office Christmas party.

While the Christmas party is a chance to celebrate the year’s achievements and have some fun, employers must make provision for the safety of employees and other guests, even if the party is held off site.

As part of their preparations, employers should review their workplace policies on sexual harassment and the responsible consumption of alcohol and make sure these are communicated to employees and other guests in advance of the party.

Sexual Harassment Policy

The Sexual Harassment Policy should clearly define sexual harassment and give examples of unacceptable behaviour.  It should include a transparent complaints handling procedure so that employees understand how and to whom to make a complaint, and how it will be handled.

In Victoria, sexual harassment means behaviour of a sexual nature that is unwelcome, unasked for and unreturned. It can be physical, verbal or written.  Examples include:-

• Unwelcome touching, hugging or kissing;
• Suggestive comments or jokes;
• Unwanted invitations to go out on dates of requests for sex; and
• Sexually explicit emails or SMS messages.

Responsible Consumption of Alcohol Policy

The introduction and adherence to a Responsible Consumption of Alcohol Policy will also assist to minimise harm both to employees consuming alcohol and to those around them. This policy should set guidelines for the acceptable consumption of alcohol, address drink driving and clearly state that violations of the policy could lead to disciplinary action, including termination.  The policy should be consistently applied.

In an unfair dismissal case heard by Fair Work Australia on 16 October 2009, the employer, a Tasmanian brewer, was held to be within its rights to sack a worker who was caught drink-driving outside of working hours.  It was found that the worker’s actions had the potential to affected the company’s reputation in the community and were in breach of its “responsible drinking” policy.

The worker had claimed his termination was unfair because the incident was not related to work.  In dismissing the worker’s claim, Fair Work Australia found that the worker had been told about the employer’s responsible drinking policy and knew that drink-driving was a serious breach of the policy, even if it occurred after hours.  It was reasonable that this employer, a brewer, insist on strict compliance with its responsible drinking policy because of the potential harm to its reputation if it was seen to support anti-social drinking practices.

See Nick Kolodjashnij v Lion Nathan t/as J Boag and Son Brewing Pty Ltd.

If the employee had been caught drink driving after a work event at which alcohol had been served, the employer would have had a harder time defending the claim.

Other precautions to take at the party

As well as reviewing policies and communicating these to staff, other steps which employers should take include:-

• Ensuring management lead by example;
• Organising a range of drinks options including light alcoholic drinks, soft drinks and water;
• Ensuring that there is adequate food served during the event; and
• Making appropriate arrangements for transport after the event.

Pre-emptive steps to prevent harassment and other injuries are crucial as it is now established that employers’ liability extends to events which take place after official work functions, and in situations where the link to work is less obvious.

In the 2007 case of Lee v Smith & Ors, the Australian Defence Force (‘ADF’) was held vicariously liable under the Commonwealth Sex Discrimination Act for the rape, sexual discrimination, harassment, and victimisation of Cassandra Lee, a civilian administration officer at a Cairns naval base. Ms Lee was sexually harassed, intimidated and, ultimately, raped by a colleague following a dinner party at another colleague’s house.

The ADF was found to be vicariously liable because the rape ‘arose out of a work situation’ and, in fact, ‘was the culmination of a series of sexual harassments that took place in the workplace’.

The well-publicised 2008 decision of Streeter v Telstra arose after a workplace party. In that case, Ms Streeter, a Telstra employee, was sacked after Telstra’s investigation concluded, among other things, that she had sexually harassed certain Telstra employees when she exposed them to her sexual antics with other co-workers.  The events took place in a hotel room which a group of employees had booked on the night of a belated Christmas party in February 2007.  It was found that, if Ms Streeter’s actions amounted to sexual harassment, it was only of the most indirect kind, but Telstra’s decision to terminate was ultimately justified because Ms Streeter had lied during the investigation by denying the allegations.

We recommend that employers should take precautions in the lead-up to social events such as Christmas parties. If a claim is made, seek advice to minimise the financial cost and the risk to the business’s reputation which could result from litigation.

Please contact one of our Workplace Relations lawyers if you would like any further information.

Author: Richard Scougall