It’s getting to that time of year again when employers hold their annual end of year (EOY) event. Generally, at these events staff get together to eat, drink and have a good time. Remember, the traditional employer-organised EOY function is a work event.
All of us have probably heard at least one horror story arising from an EOY function. If not, here are a few examples:
- A boat propeller injured an employee after they were pushed off a boat during the work Christmas party. The employer was held liable for the injury.
- Employees were prosecuted by WorkSafe for breaches of occupational health and safety laws after an employee suffered severe burns at a Christmas party. The employee had their chest sprayed with paint thinner which caught fire from the flame of an ignited spray can.
- A woman fell over and broke her leg at a Christmas party, winning a worker’s compensation case.
- An employee at a Christmas function drank too much alcohol and acted brashly and disorderly to his colleagues, leading to his dismissal. However, the FWC found it to be an unfair dismissal as the employer was to be blamed for insufficient supervision of alcohol.
So, what are the risks?
Case law establishes that the EOY event, even if held outside of normal working hours and the workplace, has sufficient connection to the work that any unlawful behaviour engaged in by employees at these functions can be subject to a workplace complaint.
Legislation that holds an employer vicariously liable (e.g. bullying, discrimination, harassment etc.) will generally extend to a work function. These laws mean an employer will, in most cases, be held vicariously liable for the acts or omissions of its employees at a work function unless the employer has taken reasonable steps to prevent the behaviour/conduct. Further, workers compensation liability for injuries sustained at work generally extends to work functions too.
These laws may also extend to conduct that occurs after the event.
Pre-Event Preparation
- Make sure policies are in place, that they are up-to-date, and that all employees have read and are aware of them. Essential policies include:
- appropriate workplace conduct (Code of Conduct),
- bullying,
- harassment, and
- discrimination.
- Consider the time of the event, perhaps a lunchtime event is a good choice.
- Notify all staff by email that the EOY party is a work event and that all employees are required to conduct themselves appropriately and comply with workplace policies and procedures. Failure to do so may result in disciplinary action, including termination of employment.
- Ensure the venue is appropriate for the event and that there are no obvious risks.
- If alcohol is supplied, ensure the venue applies responsible service of alcohol legislation. In McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343, the Fair Work Commission held that employers must ‘take steps’ to ensure that alcohol is served responsibly.
- Have a plan for everyone to get home safely.
- Consider nominating individuals to be the ‘Sober Bob’ for the event. The Fair Work Commission in Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156, encouraged employers to appoint a manager to supervise the conduct of work events to avoid mishaps. It is essential that the ‘Sober Bob’ stays sober and monitors occupational health and safety issues such as wet floors, broken glass, etc.
- Notify all staff by email of the start and finish time for the event and the get-home safely plan. State in the email that if employees choose to attend another function/venue after the party, they do so in their own capacity and the employer takes no responsibility for them ‘partying on’.
- Consider the right to disconnect. If it has been previous practice for employees to advise of their safe arrival home after EOY events, employers should consider the right to disconnect which was introduced earlier this year. While it may be reasonable to request that employees advise of their safe arrival, given the event is work-related, this expectation must be communicated beforehand.
At the Event
- Take appropriate action if inappropriate conduct occurs;
- Don’t have an endless supply of alcohol;
- Make sure food is supplied. Ensure you cater for any dietary requirements;
- Make sure non-alcoholic drinks are available;
- Make sure all employees have a safe way to get home, and no employee who has been drinking drives home.
Taking these steps should help to ensure there are more cheers than fears.