26 Nov HR Law Newsletter – November 2014
Let the Festive Season Begin …
Fairy lights, tinsel, wreaths and Santa Claus have all started appearing at shopping centres, which can only mean one thing … the office Christmas party season is upon us!
The office Christmas party is a great way for an Employer to bring staff together and celebrate what has hopefully been a joyful and prosperous 2014 for all. While Christmas parties are a time to be merry and to let your hair down, there is a serious side to them that all Employers should be mindful of.
Too often Christmas parties are remembered for the wrong reasons, like the Christmas Party held by Commercial Waterproofing Services Pty Ltd in 2006, where one of their employees was king hit by another passenger on board the Tall Ships Sailing Cruises on which the Christmas Party was held. A decision on the negligence claim brought by the employee in that case was only decided in August 2014, which demonstrates just how long an Employer may be plagued by a Christmas party gone wrong. Ultimately, the Queensland Supreme Court found that Commercial Waterproofing Services owed a duty to take reasonable care for the safety of its workers but did not breach that duty because it was not reasonably foreseeable that a passenger would assault one of its workers.
At a more recent Christmas party, which we discussed in our June 2014 Newsletter, the NSW Department of Attorney General and Justice was faced with a situation where two of its male employees had been found to have sexually assaulted multiple female employees at the 2012 office Christmas Party. While the litigation that ensued from that Christmas party was as a result of the Employer’s decision to terminate one employee and retain the other, with the recent spike in damages awarded for sexual harassment cases, this Employer may have faced a more costly outcome if one or more of the victims of the sexual harassment commenced proceedings.
In highlighting the significant increase in the award of damages in sexual harassment cases, we look to the decision of Richardson v Oracle Corporation Aust Pty Ltd  FCAFC 82. On appeal, the Full Court of the Federal Court of Australia increased the award of compensation by the primary Judge for “pain and suffering and loss of enjoyment of life” from $18,000.00 to $100,000.00.
These cases demonstrate that Employers need to be mindful that even though staff aren’t necessarily in the workplace working, they are at a work function and therefore employers may be liable for conduct that occurs at the office Christmas party. Employers should also be mindful that there is a risk of WorkCover claims for employees who may injure themselves at an office Christmas party.
To reduce the risk of an office Christmas party going wrong and to protect the employer if things do go wrong, Employers should consider, at a minimum:
- Setting a clear start and finish time to the Christmas party.
- Ensuring that alcohol, if available, is served responsibly and there is plenty of food and non-alcoholic drinks also available.
- Making arrangements for staff to be able to get home after the event, such as organising a bus to and from the venue.
- Nominating supervisors for the party.
- Prior to the event, advising all employees that the Christmas party is a work event and that they are expected to conduct themselves in a manner which they would in the workplace.
- Prior to the Christmas party, send an email to all staff reminding them of their responsibilities at the Christmas party including bringing to the employees’ attention any policies that may be used for the basis of any disciplinary action if things go wrong at the Christmas party. This may be a good opportunity to run through the employer’s sexual harassment, discrimination, workplace harassment and code of conduct policies.
- Ensuring there is a complaints process for any issues that may arise after the Christmas party.
- Finally, ensuring that your insurances cover typical Christmas party activities.
After the Christmas party employers should do a follow-up on any incidences that may have occurred, however minor they may seem. All incidences should be documented so that if further issue arises the Employer has already documented the incident.
Any questions relating to holding your office Christmas party or regarding any issues that may arise following the party, please do not hesitate to contact HR Law.