Tinsel? Check. Good location? Check. Office Secret Santa sorted? Check. Risk Management Plan for Employee behaviour and brand reputation? Uh… What?

With Christmas right around the corner, companies are starting to plan their annual Christmas party. Yet what many Employers may not have added to their checklist is to ensure that when it comes to Employee behaviour, they have clear and specific guidelines in place.

Fair Work Australia (FWA) has recently awarded compensation to an employee who was fired for, amongst other things, head butting a co-worker at the office Christmas Party. In the decision, FWA Commissioner Ian Cambridge noted that whilst the head butting was an “indefensible act” it was the Employer who had “provided the alcohol which contributed to the incident and, more importantly, it took no disciplinary action against the (employee) at the time of the discovery of the misconduct”.

As the employer had failed to properly address the incident at the time it could not be used as a sound basis for dismissal.

Head Butting left too late so no grounds for dismissal

On 24 October 2012, FWA delivered its decision in the  case of Mr Zeb Dewson v Boom Logistics. Dewson alleged he was unfairly dismissed. Dewson had been dismissed on the grounds that he had engaged in unacceptable misconduct which consisted of three alleged assaults on other employees and also for head butting another employee at the Office Christmas party.

Unfortunately for Boom Logistics, the Commissioner was unable to make a factual finding that the applicant had actually committed the three assaults as found by the employer. As for the head butting incident, whilst it was undoubtedly an incident of serious misconduct, it was unable to be relied upon as it had not been properly dealt with by Boom Logistics at the time.

FWA  held that whilst the head butting  might ordinarily provide a valid reason for dismissal it was too late to subsequently resurrect it to provide a basis for dismissal. This was because the Employer had engaged in inept procedures in dealing with the alleged disciplinary issues. No proper investigation had been taken, the relevant manger had displayed significant bias and Dewson had been ambushed with the allegations and not allowed a support person of his choice. The failure on Boom’s part to instigate a proper investigation, to give Dewson notice of the allegations and allow him to answer his case was a denial of natural justice. Thus, despite the fact that the head butting had actually occurred, a failure by the company to properly and fairly deal with the issue at the time it occurred meant that it could not subsequently be used as a grounds for dismissal.

What Should Employers Do?

This case demonstrates that for Employers faced with unacceptable and inappropriate behaviour by staff at company social events, it is extremely important that they:

• Address  the unacceptable behaviour immediately;
• Follow proper procedures for disciplinary issues;
• Have company policies for discipline; and
• Observe natural justice in the disciplinary process.

Social Media and Brand Reputation

Not only should Employers seek to manage the risk associated with staff’s physical behaviour, but they should also consider the possible ramifications of online behaviour by their staff. With smart phones, a simple click and a few seconds can result in what is effectively live streaming of an event via Facebook status updates, twitter feeds and photo uploads.

Avoid Brand Damage

Needless to say, status updates such as “So wasted at the *insert company name here* Christmas Party” or photo uploads of drunken staff members are not conducive to a respectable brand image. The risks of social media use resulting in lawsuits and brand damage is not imagined. Staff posts online about the business or about other employees can quickly result in claims of bullying, harassment or defamation. Many people have their place of employment listed on their Facebook profile, so even if the company name is not specifically mentioned in a post, any posts even mentioning “work” are easily traced back to the company.

Brand Damage and Social Functions

When planning social functions, Employers should set clear guidelines in an effort to avoid problems.  Employers should plan  their response  to issues such as insubordination, breaches of confidence, and harassment as such conduct is more likely to occur at social functions especially where staff imbibe alcohol,  relax and can forget that the event  is still work related  and company policies apply.

Before the event, guidelines on expectations and behaviour should be distributed and explained to Staff.  Employers should decide  whether or not work will recommence straight after the event, and if so, what will be the expectations on alcohol consumption.  One way to manage the alcohol risk is to hold the function at a licensed venue where the venue is bound by responsible service of alcohol guidelines.

Nobody likes a Grinch during the Christmas season but nobody likes a lawsuit either

To read the FWA case see:

http://www.fwa.gov.au/decisionssigned/html/2012fwa9027.htm

(Content Warning:  This case contains content that may offend some readers

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