Managing Misconduct over the Holidays

Vince Scopelliti - Wednesday, December 18, 2019

The festive season is fraught with concern for employers. With many staff on leave and those who remain letting their proverbial hair down (often with a beverage or three!) the holiday period can be a minefield.

We take a look at when employees are still considered to be "at work", define misconduct and provide some tips for dealing with poor behaviour in the workplace over the holidays. 

When are employees still 'at work'?

A workplace is where people perform their jobs, undertaking their contracted hours of work. However, a work function held outside the office and outside regular business hours, is considered to be an extension of the workplace.

A general rule of thumb is, that if an event is organised and paid for by an employer, it's officially sanctioned. Liability therefore remains with the employer for any misconduct that occurs. This is likely to be the case, regardless of how many pre-event warnings have been issued to staff, and how many times staff have been reminded of the applicable policies and codes of conduct.

It is also important to keep in mind that employers may bear third party liability, to family members who attend a staff Christmas party, functions held in public venues (where people other than staff could get injured) and in circumstances where a worker causes injury to another person, when leaving an event in a state of intoxication.

defining misconduct in the workplace

Misconduct over the holiday period generally refers to inappropriate behaviour such as discrimination, workplace harassment and bullying, or sexual harassment. This type of behaviour is often associated with the Christmas party, where people have consumed alcohol and have lowered inhibitions.

It is important for employers to remember that the definition of sexual harassment, for example, includes but is not limited to, conduct of a sexual nature which is offensive, humiliating or embarrassing to the person complaining of the behaviour. Crucially, it is irrelevant if the behaviour was intended to offend - it is the opinion of the "victim" and not the "perpetrator" which is relevant.

Other types of misconduct include staff pulling "sickies" due to hangovers, or poor behaviour such as sharing inappropriate stories or having general disagreements between co-workers boil over.  

why is there a prevalence of misconduct over the holidays?

As noted, there is often an increased incidence of misconduct in circumstances where staff are consuming (potentially excessive) amounts of alcohol and otherwise lowering inhibitions.

There is also a general misapprehension amongst employees to the effect that a Christmas party is not considered to be related to employment - which is not the case.

This is part of the reason why employers should also give serious consideration as to whether they wish to gift alcohol, either to their staff or to clients or business associates. While alcohol is a convenient and often appreciated gift, it can create an impression that an employer is not concerned about responsible service of alcohol.

mitigating the risk of misconduct

There are numerous ways that employers can mitigate the risk of misconduct during the holidays. 

Before a function, employers should take steps to remind staff (generally via an email) that it is to be treated as a workplace event, and therefore the usual policies and procedures remain in place. It is also timely to recirculate documents such as code of conduct, sexual harassment or bullying policies and procedures.

During the work function, employers should consider ensuring that at least one (if not more) senior personnel are in a position to remind staff who have over-consumed alcohol, that they should stop drinking and/or perhaps even leave the event.

Similarly, companies should ensure that there are sufficient taxi vouchers or other safe methods of transport home, for all employees who want them. This ensures that the business cannot be responsible for any employees who injure themselves and/or others on the way from the party.

If allegations of misconduct do arise from a Christmas function, employers must ensure that due process and fair procedures are implemented. This includes taking into account the fact that staff may be on leave or have applied to be on leave.

Although the investigative process should not be unnecessarily drawn out, staff who have pre-booked leave, should not be prejudiced by the fact that they are unavailable at that time of year. They should have the same opportunity to prepare a response to allegations as at any other time of year.

Managing staff and keeping in touch with staff over a quieter holiday period can be a challenge. If you need assistance reviewing and managing staff behaviour in your workplace, WISE Workplace provides expert external investigation services to meet your needs. 

Responding to Bad Behaviour at the Christmas Party

Vince Scopelliti - Wednesday, November 27, 2019

It's no secret that both the good and the bad can be on display at the annual work Christmas party. While smiles and good cheer can and should be the main features at an end-of-year bash, some unfortunate behaviour can also arise. 

Alcohol abuse, sexual harassment and aggressive behaviour are just some of the less savoury possibilities. But despite the instinct to punish personnel who wander astray, it is vital that employers respond to Christmas misbehaviour in a manner which is both reasonable and proportionate.

Alcohol abuse/intoxication

For many workers and business owners, the idea of a Christmas party with zero alcohol is a rather bleak one. Secret Santa, sausage rolls and a few cool beverages tend to be part of the workplace festive tradition. Yet the results of intoxication at the work Christmas party are the stuff of unfortunate legend. Raised voices, wild dancing, lewd comments, recriminations and unwanted advances are just some of the potential products of the wrong mix of drinks.

Moderation is everything when it comes to the supply of alcohol at the end-of-year event. Plenty of forewarning to staff about rules and refreshments will also help to keep proceedings on an even keel.

sexual harassment

The well-known reduction of inhibitions caused by alcohol consumption can lead to one of the more serious Christmas party side-effects: sexual harassment. The working year is over, the relief is palpable and perhaps a perceived flirtation is taken in an unacceptable direction. Behaviour that would certainly be shunned in the ordinary workplace can seem 'up for grabs' in the glittery glow of the Christmas party lights.

Alcohol can of course be part of the unacceptable sexual harassment situation: yet sometimes just the high spirits of the Christmas party itself can lead to an array of unacceptable approaches and behaviours.

Aggressive behaviour 

As with misconceived flirtation, the office Christmas party can bring out the worst forms of aggressive behaviour. Personal tensions can simmer during the year, with the relief of the office party creating an unleashing of built-up emotion. Add alcohol to the mix, and there is a strong possibility that arguments, fights and even assaults will emerge.

Case study - keeping things proportionate 

The case of Keenan v Leighton Boral NSW Pty Ltd [2015] FWC 3156 reflects the need to act swiftly in response to Christmas party problems - yet to do so in a fair and measured way.

In this case, the Fair Work Commission was faced with the troubling situation of an employee becoming intoxicated and proceeding to swear, abuse and provide unwanted advances through the night. He was dismissed. However, the worker's excellent work record, combined with the employer's dubious provision of free-flowing alcohol, saw Keenan's dismissal overturned by the FWC.

In particular, it was noted that any disciplinary action needed to be reasonable and proportionate to the condemned behaviour. The limitless alcohol situation certainly did little to assist the employer's case. And while the employee's drunken behaviour was a nightmare of ill-conceived comments, actions and insults, the FWC noted that his long and notable record of service required the employer to be reasonable in response.

It is certainly a cautionary tale to employers supplying alcohol at Christmas parties. If no limits are placed upon the type and volume of alcohol consumed by workers across time, then a large part of the fault in such cases will no doubt be seen to rest with employers.

managing the christmas party risks 

When it comes to organising the annual Christmas party, it pays for employers to plan the event well in advance. All employees should be aware of the order of proceedings, times and expectations at the party. Employers should plan food and alcohol extremely well, working out how the judicious service of alcohol will be managed through the night.

Providing security staff on the night can also be an excellent way to keep emotions and good cheer under some sort of control!

The Keenan case certainly demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action against an employee. In unfair dismissal claims, the Commission will not hesitate to find in favour of the applicant where the employer failed to apply proportionate disciplinary action. If you would like to ensure your investigation process is considered and enforceable, WISE provides full and supported investigation services, as well as investigation training for your staff. 

Work Christmas Parties: 3 Tips for a Fun Festive Function

Vince Scopelliti - Wednesday, November 14, 2018

It's the end of a long year. Employers and staff alike have worked hard and are looking forward to the opportunity to catch up, celebrate, network and relax.

The work Christmas party is often anticipated as an ideal way to farewell the working year, reward staff, and anticipate the year ahead. However, employers must understand that a successful - and incident-free - Christmas party is dependent upon good planning and a sound understanding of the unique risks of work-related events. 

We provide our three best tips for ensuring a fun, safe and low-risk festive event. 

1. uNDERSTAND YOUR UNIQUE OBLIGATIONS 

One unfortunate mistake that we see in December is employers putting on a 'knees up' for staff without fully understanding the obligations involved. Importantly, it is not only parties held in the workplace that require careful consideration of an employer's legal obligations to staff. Festive functions that are off-site, yet employer sanctioned generally attract the full suite of workplace legalities. Required attendance or strong encouragement to attend, combined with free catering and in-built networking opportunities can all indicate that the Christmas party is indeed a work-related event, wherever it might be held.

Workplace safety usually brings to mind ideas of trip hazards and work station alignment. However, when it comes to the work Christmas party, some hazards are very particular. An open bar is a definite no-no. While some staff might groan about the lack of generosity, the relationship between alcohol and poor Christmas party behaviour is well-documented. It is no laughing matter for those employers who are faced with issues of alleged harassment, staff abuse and injury to workers in the wake of a Christmas 'cracker'.

2. Prepare, Prepare and prepare!

Clear communication to all staff about the nature of the upcoming Christmas party is essential. Without seeming like a kill-joy, it is important to outline in writing the expected behaviour of staff, venue rules and general housekeeping such as the end time of both the bar tab and the function itself. A good idea is to build a basic run-sheet into the invitation. Indicate a start time, any speeches and awards, food presentation, bar hours and offerings and close of proceedings. Preparing staff mentally beforehand will discourage untoward behaviour. 

The importance of limiting alcohol and providing professional function staff at Christmas parties was made painfully clear in the recent case of Sione Vai v Aldi Stores. An inebriated worker became extremely agitated when refused service of alcohol by a responsible bar worker. 

As part of his inappropriate and drunken behaviour, the employee threw a full glass of beer towards a security officer, which sprayed co-workers before smashing into a lamp. He was later dismissed. In appealing this decision, the worker claimed that he lost his job as a direct result of this employer-sanctioned party. 

However, Commissioner David Gregory considered that the provision of professional security and bar staff - trained in Responsible Service of Alcohol (RSA) - as well as a limited supply of alcohol all indicated that the employer had acted with care and diligence. The dismissal was upheld. 

3. respond swiftly to christmas party incidents

As seen in the above case study, preparation and quick action at the time of the function is essential. The aftermath of the party is also a crucial time to consider any necessary responses to incidents that come to light, whether by rumour or direct report. Unfortunately, sexual harassment, verbal abuse, alcohol-related injuries and culturally inappropriate behaviour can all rear their ugly heads at the very function that is designed to foster fun, camaraderie, reflection and unity. Employers should swiftly respond to any Christmas party incidents, ensuring that matters are investigated in a fair, professional and transparent manner. 

decking the halls (safely!)

Equipped with a strong understanding of legal obligations, some sound preparation and prompt responses to any incidents, employers can create a Christmas party that is enjoyable, safe and memorable for all the right reasons. 

If you need assistance to prepare for your Christmas party, or dealing with any issues, which arise from the Christmas party, contact WISE for assistance

Workplace Party Pitfalls and Perils (A Christmas Story)

Vince Scopelliti - Wednesday, November 15, 2017

At a time when workers increasingly work remotely, communicate online or use hot desks, the annual staff Christmas party is a valuable opportunity to get everyone interacting face to face. 

A Christmas party is also a good way of getting staff who rarely see one another during the working week to meet, to reward staff for hard work, to celebrate the success of the past year, and to motivate employees for the year ahead. 

At the same time, it is essential that reasonable steps are taken to manage the risk to the organisation's reputation, to provide an environment free from discrimination and to protect the health and safety of all involved in the Christmas party. 

Small wonder then that there is a fine line between potentially permitting a situation to get out of hand, and being so risk averse that you kill the fun of the party altogether. 

Here's a quick guide for employees and employers on how to avoid the potential perils of the work Christmas party.

when is a party classed as a workplace event?

First, in order for a business to be legally liable for events that occur at a Christmas party, it must be considered a 'workplace event'. However, this can extend beyond something which is specifically labelled an 'end of year function' or 'Christmas party', and can include something as informal as a picnic or a sporting activity - or even an unplanned and spontaneous event like an after party. 

The factors that determine whether something is defined as a workplace event include:

  • Whether the employer sponsored or funded the event.
  • If the employer was involved in organising the event or issued invitations.
  • Whether attendance was voluntary or whether the employer expected attendance - for example, by requiring employees who did not attend to take annual leave or work instead. 
  • If employees consider it a 'perk' of employment to attend the event.
  • Whether the employer benefitted from the event, for example by having the opportunity to present awards or network with clients.  

SO HOW CAN THINGS GO WRONG?

Some notable mishaps from past Christmas parties include: 

  • The dismissal of an employee for haranguing and then pushing a fully clothed co-worker into a swimming pool. That decision was upheld by the Fair Work Commission, despite noting that the employer should not have provided virtually unlimited alcohol. Another factor was that the employee was asked to leave by the general manager, but refused to do so, engaging in a physical altercation with him. 
  • An employee urinating off a balcony on Darling Harbour onto dining patrons below was sacked for misconduct. 
  • A formal warning was given to a police officer who used a genital piercing to open beer bottles during a party. 
  • Another employee lost his job after faking his wife's illness to miss his own Christmas party - only to attend that of a competitor.   

how employees can have fun and stay out of trouble

There are a few important things employees should be aware of: 

  • What happens at the party will almost certainly not stay at the party. Quite apart from water-cooler gossip and the potential repercussions of people remembering what you said or did after that fifth glass of wine, there's also potential for humiliating photographs or embarrassing posts to be shared on social media. 
  • Employees should set and stick to limits. Good working relationships can be quickly destroyed, and respect lost, through foolish or careless behaviour by those who have over-imbibed. 
  • Once your reputation has been damaged, it can be incredibly difficult to repair it. Remember that you will need to see your colleagues and any other guests again - if not on Monday, certainly after the Christmas break. 

Instead of overdoing the alcohol, use the party as an opportunity to network with other people in your organisation whom you may not know as well. The Christmas party should be an opportunity to have fun and form more personal connections, with a view to improving your overall work life.

WHAT EMPLOYERS MUST DO

In order to minimise any potential pitfalls from the Christmas party, employers need to know a few key things:

  • If a function is deemed to be a workplace event, then the employer owes a duty of care to employees. This includes being held vicariously responsible for any injuries, discrimination, harassment, or potentially for anything the employees do wrong, such as breakages. 
  • Service of alcohol is the responsibility of the employer. Although employees should feel free to have a good time without undue restrictions, it is up to the employer to ensure that nobody is excessively intoxicated. Some employers may also wish to provide alternative transport home, such as Cabcharge vouchers. 
  • Employers should make it clear exactly when the function starts and finishes. Setting a specific end time for the festivities assists with limiting the employer's duty of care to a finite window, after which point anything that happens at a different venue could be considered to be 'off the clock'. 
  • Employees should be reminded that, even though the event may not be held at the workplace, the usual rules of conduct apply. This includes reminding employees of the company's sexual harassment, bullying and anti-discrimination policies. 
  • Remind employees to be culturally sensitive, especially noting that not all people celebrate Christmas, and ensure that any gifts sanctioned at the workplace event, such as Secret Santa, are not inappropriate or offensive. 

How to deal with any misconduct 

If something does go wrong at the Christmas party, it is important for employers to deal with potential misconduct swiftly and fairly in order to minimise any fallout. WISE Workplace can assist with a professional and unbiased workplace investigation.