Dec 042015
 

The Christmas decorations are going up and the staff and employers alike are looking forward to kicking off the silly season with a staff Christmas party. What can possibly go wrong?

Unlimited alcohol at Christmas parties is every employee’s dream, but it can also be your worst nightmare. If you haven’t managed your risks effectively, then forget about punishing an employee’s inappropriate behaviour at the Christmas party unless you first check off a few essentials on your Christmas party planning list.

Does unlimited supply of alcohol mean unlimited licence to misbehave?

A rowdy employee of Leighton Boral Amey Joint Venture, who told a manager to “fuck off” and asked another “who the fuck are you?” at the annual staff Christmas Party, was ‘unfairly dismissed’ according to a ruling by the Fair Work Commission (FWC) in 2015. The employee, Mr Keenan, was also reported for sexually harassing female employees after the Christmas Party finished. It is surprising that any employee who goes on a drunken rampage during a staff event would be reinstated, but the FWC ruled that the employer was at fault for failing to effectively manage service of alcohol and for not having fair procedures for the dismissal.

The FWC has also affirmed that behaviour that took place outside the Christmas party was outside the usual course of Keenan’s employment. For Leighton Boral this meant that Keenan’s sexual harassment of female employees that happened after the Christmas party could not be used as a reason for his dismissal.

However, this ‘out of sight, out of mind’ rule can also return a favourable outcome for employers. In the case of Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor [2015], a ‘Christmas Party’ at the Woods turned into a horror bedtime tale when Jukes Campbell, an Australian Leisure employee, was fatally injured diving ‘head first’ into the Noosa River for a photo opportunity. This was not an official staff Christmas party organised by Australian Leisure, but the managers knew about it and even encouraged it. The Industrial Court of Queensland found that Australian Leisure did not encourage the actual ‘diving head first into the river’ activity and the case was eventually decided in the employer’s favour. Nevertheless, if the staff party was organised by Australian Leisure, it is more than likely that the Christmas odds would not have been in this employer’s favour.

So what does this mean for you?

A Christmas cocktail of unlimited booze and unmanaged risk could mean a stocking full of coal for a hapless employer. If you still decide to treat your employees to a ‘cold one’ this Christmas, make sure you tick the following items off your Christmas ‘to do’ list:

  1. your employees know what behaviour is expected of them at work functions;
  2. your employees are aware of the start and end times of the Christmas party;
  3. the supply of alcohol and other related risks are managed appropriately; and 
  4. you do "not endorse" any unofficial staff Christmas parties.

Ensure that you are not the ‘silly’ one this festive season and enforce your ordinary safety standards both in the workplace and at the Christmas party.

Peter McNamara

Partner at Clark McNamara Lawyers

Want to read more? http://www.cml.com.au/not-so-jolly-in-the-jolly-season/

Read the case of Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156 (26 June 2015)  herehttps://www.fwc.gov.au/documents/decisionssigned/html/2015FWC3156.htm

Read the case of Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor [2015] ICQ 016 herehttp://archive.sclqld.org.au/qjudgment/2015/ICQ15-016.pdf

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