Published November 2022

With the festive season quickly approaching, your employees may be preparing to let their hair down at one of the many upcoming end-of-year celebrations.

Now is the time for employees and employers alike, to consider their obligations and how they apply to work functions like Christmas or New Year parties, both inside and outside of the workplace.

Unfortunately, employers may at times not fully understand their level of responsibility and legal liability to ensure employee (& public) safety at Christmas or New Year parties. Employers can be held vicariously liable for the actions of their employees which extends to inappropriate statements and conduct that occurs at work-related Christmas celebrations.

EMPLOYER RISKS & OBLIGATIONS

Section 19 of the Work Health and Safety Act 2011 (Qld) sets out the primary duty of care that an employer has to its employees. It states that:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

Therefore, the employer must take reasonable steps to ensure the safety of its employees. This may include ensuring, amongst other things, that the party is held at a safe venue, that there is not likely to be excessive alcohol consumption and reminding employees about appropriate work function conduct and behaviour. Whether there is alcohol at a work function or not, the expectations on employee behaviour should be much the same as when they are at work.

Employers should also be aware that alongside health and safety obligations, there are other risks to be considered in relation to bullying, harassment, sexual harassment, discrimination, injuries (worker’s compensation) and even unfair dismissal, in the event an employee is terminated due to their conduct in connection with a work event.

Next, we explore some significant cases that put these risks and obligations in to context, and provide some guidance around how to protect your business while still enabling everyone to have fun through the upcoming celebration season.

HEALTH & SAFETY

In a recent case, where the owner of a hairdressing salon in SA arranged an annual weekend away for her employees;

• the employer paid for accommodation, dinner, breakfast & drinks at the pool / spa;
• the employer went to bed but went downstairs on two occasions throughout the night to ask the employees to stop splashing around;
• the employees continued partying & drinking, booked a male stripper to arrive, removed bather tops, splashed water and liquid soap on tiles and started sliding around on the tiles;
• 1 employee broke her hip & consequently submitted a compensation claim against the employer.

Outcome

The employer was ordered to pay compensation to the employee.

It was found that although the employer would not have suggested they behave in this way, the result was inevitable:

• employees took swimwear knowing they would be swimming;
• alcohol was provided without limitation;
• the venue was not safe given there was a pool / spa, unlimited alcohol, and no supervision.

On the other hand, an employer may not be held accountable where an injury is not deemed to be reasonably foreseeable. An example of this was when an employee was at a work function on a boat and requested that another person (not a fellow employee) stop swearing because there were children present; the employee was then assaulted by the other person. In this instance, the employer was not deemed to have a duty of care to the employee as it was not reasonably foreseeable that the employee would have been assaulted in this way.

EMPLOYEE BEHAVIOUR

In Keenan v Boral, an employee attended a Christmas party that was held across 2 levels (bar upstairs and function downstairs):

• The employer supplied unlimited drinks to staff from the upstairs bar throughout the party;
• The employee became very intoxicated and abusive to other staff while downstairs;
• At later stages of the party, he moved upstairs and continued with his obnoxious behaviour including asking other employees out on dates, trying to inappropriately touch and kiss staff;
• The employee was dismissed and subsequently lodged an Unfair Dismissal claim.

Outcome

The Unfair Dismissal claim was upheld (in the employee’s favour).

It was found that the employer was unable to rely on the conduct of the employee whilst in the upstairs bar as this area was not supervised. The behaviour of the employee while downstairs was not severe enough to cause an employee to be dismissed. The employer was reprimanded for not having risk mitigation (supervision) in place.

AFTER PARTIES

Just because a work function or Christmas party has ended, does not mean that the employer’s duty of care necessarily ends. Even once staff have left the organised event, the organisation may still be liable if an incident occurs following the event. It is important that employers do what they can to ensure that staff get home safely.

The standard that usually applies is that the employer has a duty of care to the employees while they engage in any activity reasonably associated with attending a work function. This may include travel to and from the function. However, the employers’ duty of care ceases when the employee is deemed to be going off on a “frolic of their own”.

In the High Court case of Comcare v PVYW [2013] HCA 41 at 35, the Court stated:

“Because the employer’s inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer’s liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred …. that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.”

If an employee engages in an activity that is not part of the expectation of activities undertaken while at a work function, then they are likely to be stepping outside the employers’ duty of care.

In Keron v Westpac, the following occurred:

• Westpac held their Christmas party at a sports bar;
• 2-hour unlimited alcohol was provided;
• The party was unsupervised;
• No transport home was provided for employees;
• Two incidents happened at an after party when the employees left the Christmas party.

Outcome

The employer was found to be liable due to providing unlimited alcohol without supervision during party, not providing transport for employees to get home and knowing that employees were continuing onto another venue.

If alcohol is necessary, then the employer needs to ensure employees are safe and everyone knows at what point the work event has concluded. If there is a connection to an after party, then there is a degree of responsibility on the employer.

OUR RECOMMENDATIONS

The Christmas season in particular is a time for fun and celebration, but there are risks and obligations that employers need to manage. Here are our top tips to set you off on the right foot:

• Ensure your event has an end time that is communicated with your team;
• If possible, provide transport home following the event;
• Consider whether alcohol or an open bar are necessary;
• Consider the appropriate level of supervision needed;
• Ensure your workplace policies and procedures are in place and regularly communicated all year ‘round;
• Ensure company policy and expectations in relation to events and celebrations are clearly communicated to your employees prior to the silly season arriving;
• Ensure you regularly train your team on acceptable behaviour at work (which includes work events) and retain attendance records.

And most important of all…..have fun!!