With the silly season among us and the celebrations commencing in full force, employers must not lose sight of their responsibilities to their employees and potential risks that can arise with end of year festivities.
Before the party
A few simple steps can be taken before your party that will automatically reduce the likelihood of risks. You should have clear workplace complaint policies for bullying, sexual harassment and alcohol consumption, making sure that all employees are familiar with these. Prior to the event, you should remind all employees of the expected standards of behaviour, and which behaviours will not be tolerated at work-related events. In particular make clear the rules for acceptable behaviour outside of the workplace and outside of working hours. You should also consider allocating an individual or team of employees the task of monitoring the behaviour of their colleagues during the event.
During the party
The responsible service of alcohol (RSA) is vital to risk management at Christmas parties. Avoid ‘unlimited’ or ‘help yourself’ service and ensure that plenty of food and water is provided, taking into account the dietary requirements of all employees. Employers should also ensure that intoxicated employees are promptly cut off from the bar.
The Fair Work Commission has warned that employers can be culpable for events attributable to consumption of alcohol if no steps are taken to ensure RSA. The warning was in a case where an employer successfully defended an unfair dismissal claim by an employee sacked for fighting at a Christmas Party: Damien McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343. There were no controls in place over the amount of alcohol that could be consumed by employees at their end of year Christmas party. As a result one inebriated employee became aggressive towards a number of employees. He pushed one of his colleagues into the pool after having a heated discussion about work matters, and then was later asked to leave the party after engaging in a physical altercation with another employee who sustained minor injuries. As a result the employee was dismissed the following day and lodged an unfair dismissal claim. The FWC found the dismissal to be fair based on the aggressive past of the individual, however noted that circumstances where an employer provides alcohol at work functions and takes no steps to ensure it is consumed responsibly may be culpable for events attributable to the consumption of alcohol.
Another instructive story on what can go wrong when unlimited alcohol is supplied by employers is here:
After the party
Employers should remember that when the party is over they can still be held culpable for behaviour that occurs after the event. This risk is best handled by providing clear start and finish times, and ensuring that everyone promptly vacates the premises once the function has ended. Some employers provide employees with a safe method of transport home to reduce risks associated with intoxicated or vulnerable persons. This could include providing a Cab-Charge or private bus for those who live long distances from the venue, and also ensuring that intoxicated employees who drove do not drive home.
The next day and the “sickie”
Employers also have rights when it comes to the Christmas party season, particularly with employees who mysteriously become ill the day after an event. With the exception of casual employees, employees are entitled to paid personal leave for illness or injury under the National employment Standards (NES). They are required to inform their employer of their absence as soon as practical. As an employer you are entitled to ask an employee to provide reasonable evidence to support their absence, and can request that they provide a medical certificate or statutory declaration. If you have reasonable grounds for doubting a medical certificate, you may ask them to visit another doctor. It is important to note that you must be reasonable in your requests and asking each employee for a medical certificate after every day off may not be considered reasonable. Such requests may be warranted in circumstances where the employee is regularly absent.
Some more information about “sickies” is here:
http://www.cml.com.au/chucking-a-sickie-just-chuck-it-or-get-chucked/
Peter McNamara
Partner at CML Lawyers
Read the full case of Damien McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343 here:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FWC/2016/343.html