Managing risk at work Christmas parties in the era of COVID-19

As Australians continue to turn out in droves to be vaccinated against COVID-19 and the country’s most populous cities emerge from lengthy lockdowns, we have been enjoying the simple pleasures of life that were previously taken for granted. One such tradition, which looks set to return for many workplaces for the first time since the pandemic began, is the end of year work Christmas party.

The work Christmas party is usually a fantastic occasion for all involved – for employers, it is the opportunity to thank the workforce for their hard work across the year; for employees, it gives the chance to have a social catch-up with colleagues, and enjoy some food and beverages on the boss. However, at this time of year it serves as a timely reminder to both employers and employees that poor management, planning and behaviour can lead to headaches that last much longer than the next day. In this alert, we examine the risks that may come out of work Christmas parties, and the key takeaways of the significant body of litigation that has arisen from such events.

Managing the Party

Employers owe an overarching duty to take all steps reasonably practicable to prevent the risk of injury in the workplace. It is well-accepted by the Courts that any Christmas party that is organised by an employer for its staff will be considered part of the ‘workplace’, and the employer will be liable for any inappropriate or unlawful behaviour that occurs, if they have not taken all reasonable steps to prevent such conduct. It is irrelevant in this context that a Christmas party may occur outside of work premises and ordinary business hours – an event organised by the employer will constitute part of the ‘workplace’ nonetheless. While the work Christmas party is a cause for celebration, these events are notorious for being a potential breeding ground for inappropriate workplace behaviour, more often than not fuelled by excessive alcohol consumption.

It is therefore imperative for employers, as a risk mitigation exercise, to educate staff as to what constitutes acceptable behaviour, and what behaviour will not be tolerated. In addition, it is important for employers to ensure control measures, particularly around the consumption of alcohol, are implemented during the end of year function.

Any Christmas parties that are organised by employers this year will further need to be mindful of compliance with all government regulations relating to COVID-19. In some States and Territories, people who are not fully vaccinated may not enter a number of venues, and employers in these States should enquire as to the vaccination status of their staff prior to these events to avoid any unwanted surprises on the day of the party. If an employer is organising a private function, it must also adhere to various COVID-19 restrictions, such as density caps and restrictions around dancing. In all circumstances, the employer should encourage the same hygiene practices that are in place in the workplace, such as frequent hand-washing and maintaining social distancing.

We recommend that employers, at a minimum, implement the following measures before and at the Christmas party (or other events involving alcohol):

1. Develop and implement policies around appropriate workplace behaviours, and refreshing these expectations with their employees regularly and in particular before the work Christmas party;
2. Consult with staff in relation to the company’s expectations of behaviour at work Christmas parties;
3. Review COVID-19 restrictions well before the event and (if required) enquire as to the vaccination status of staff;
4. Inform staff well before the event of the COVID -19 protocols in place and how they are required to comply;
5. Limit the amount of alcohol supplied at the event and ensure food is provided especially in circumstances where alcohol is served;
6. Ensure the service of alcohol is provided by third-party officers (such as bartenders with RSAs), rather than employees ‘self-serving’ their own drinks;
7. Ensure the party is COVID-safe; and
8. Ensure adequate security and safety measures are in place at the venue.

To further highlight the different outcomes that can arise based on the planning, management and control exercised by an employer (or lack thereof), it is worthwhile to compare Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 and Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118.

In Keenan a drunken employee was dismissed after he had verbally abused his boss and sexually harassed a number of female colleagues, both during the Christmas party and at an unofficial afterparty. Despite the employee being warned that the usual workplace code of conduct would apply at the Christmas party, the Commission still found that the employee’s dismissal was unfair. One of the considerations in making this finding was the fact there was unlimited self-service of alcohol at the party, and the employer had failed to place anyone in charge of supervising the conduct of the function or the service of alcohol.

In Vai, an employee was dismissed for misbehaviour at a work Christmas party at which the employer also supplied free alcohol. In this matter, the employee threw a full glass of beer towards other employees. While this conduct, while undoubtably inappropriate in a workplace environment, appeared to be less serious than the conduct in question in Keenan, the Commission upheld Mr Vai’s dismissal. Of relevance, the Commission noted that the work function in Vai occurred in a hotel where the service of alcohol was controlled by bar attendants, and where senior staff were present to supervise the event.

After the Party

While it is uncontroversial that an event organised and paid for by the employer constitutes part of the ‘workplace’, what happens when inappropriate conduct occurs after the official event has ended?

It is quite common for employees to ‘kick on’ festivities after the employer-controlled event concludes, and in our experience, it is in these circumstances that unsavoury conduct is most likely to occur. In the event that a complaint of inappropriate behaviour is raised about behaviour during or after a work Christmas party, it is of the utmost importance that responsive action is taken quickly by the employer. Leaving an investigation to mid-January is often too late, and can cause issues around procedural fairness if any employee is ultimately disciplined due to misconduct.

When a complaint is made about inappropriate behaviour, we recommend that employers respond by undertaking the following measures:

1. Avoid delaying the response time to allegations;
2. Never assume an allegation is frivolous or vexatious without making inquiries;
3. Provide counselling and support services to the complainant;
4. Investigate the matter fully, either internally or via a third-party investigation service;
5. Notify the employee against whom an allegation has been made, clearly outline the nature of the allegations, and request the employee’s response;
6. Suspend the accused employee (if necessary) until all the facts have been gathered and a course of action has been decided upon;
7. Consider all the evidence and then determine an appropriate disciplinary response;
8. Document clearly and comprehensively your records at each step of the response process.

The potential ramifications of unsavoury conduct at unsanctioned ‘kick-on’ events was considered by the Australian Industrial Relations Commission in the case of Streeter v Telstra Corporation Limited [2007] AIRC 679. In this case, Telstra organised a combined Christmas and farewell party which was attended by Ms Streeter and her colleagues. After the official event concluded, Ms Streeter and a number of her colleagues continued to party in a hotel room. In the hotel room, Ms Streeter showered with one of her colleagues and had sexual intercourse with two colleagues in front of a fourth colleague.

The fourth colleague complained about Ms Streeter’s conduct, and Telstra conducted an investigation. Ms Streeter was uncooperative during the course of the investigation, and was eventually dismissed by Telstra.

In the ensuing unfair dismissal claim, Ms Streeter argued that, because of the circumstances in which her inappropriate behaviour occurred, there was not a ‘sufficient nexus’ to her employment, and that her conduct would have no bearing on her ongoing employment with Telstra. The Commission rejected this argument, and observed that Ms Streeter’s conduct had deeply upset the fourth colleague, which would undoubtably cause friction in the workplace should Ms Streeter return to it. It was further noted that Ms Streeter’s conduct had a connection to her employment, as Telstra may be vicariously liable for her behaviour should the fourth colleague bring a sexual harassment claim in relation to the conduct.

Key Lessons for Employers 

Whilst work functions are a great opportunity to have fun with colleagues, we recommend employers take proactive measures to mitigate the risk of unseemly behaviour at work Christmas parties, and deal promptly and appropriately with any complaints that may arise after such events. We wish all of our clients and readers a wonderful Holiday period and a Happy New Year, and leave you with the following key points:

1. The best way to avoid unwanted behaviour at work Christmas parties is to take proactive steps and ensure appropriate workplace policies are in place;
2. Employers should take steps at the party to mitigate risk, such as ensuring alcohol service is monitored by qualified bar attendants, and that any COVID-19 restrictions are being complied with;
3. In the unfortunate event that an employee does misconduct themselves at or after the official event, it is crucial for complaints to be dealt with promptly, confidentially and in a procedurally fair manner.

This alert is not intended to constitute, and should