The festive season is well and truly upon us, and for many employers, this means hosting events to celebrate the year that was, and what a year it has been. Whilst it is natural for employers to want to reward employees with an end of year event, there are often associated risks in doing so.
This article explores how employers can best prepare for, and manage employee behaviour during end of year functions to not only ensure a safe, enjoyable event for those attending, but could also to help protect the business against certain claims such as, but not limited to; workers compensation, sexual harassment, and discrimination. Employers should expect the best but prepare for the worst.
Anti-discrimination and workplace health and safety laws in Australia impose a duty of care on employers to ensure the health and safety of employees, not only whilst they are performing work, but also at events outside of work where there is a clear connection to the workplace. If an incident occurs at a workplace event, the scope of accountability can extend to not only the business but any individual who could be held reasonably responsible for the event, including directors and human resources. As a result, all reasonable steps must be taken toward ensuring the health and safety of employees, both physically and mentally, before a workplace event.
In the case of Vegara v Ewin  FCAFC 100 (12 August 2014), the respondent was found to have sexually harassed the applicant over several locations, the first of which was the office. The applicant had repeatedly sought to discourage the advances of the respondent and attempted to resolve the issues outside of the workplace at a nearby pub. In the preceding days, the pair attended a workplace event where the applicant became intoxicated, and following the event the pair engaged in what the applicant deemed as ‘unwanted sexual assault’. One of the main issues of the case was whether the ‘unwanted sexual assault’ occurred whilst ‘at work’. The Federal Court of Australia – Full Court found a reasonable connection to the workplace given the sexual advances initially begun within the workplace. The respondent appealed the decision however his appeal was later dismissed.
For a claim to be compensable under workers compensation laws the incident would need to occur in the ‘course of employment’. In the case of Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor  ICQ 016 (29 May 2015), the employee attended a Christmas work party held near the Noosa river where food and drinks were supplied by the employer. Employees were not obligated to attend the event. A few hours into the event the employee dove into the Noosa River and sustained critical injuries. The employee, unfortunately, died as a result of the injuries. The injuries and resultant death were found to be non-compensable due to the lack of inducement by the employer regarding the action taken by the employee. The court outlined the action did not occur during the course of employment. The decision of non-compensable injury was upheld on appeal.
Reducing Risk of Reputational and Legal Liability
Reducing liability as an employer should be a key consideration when organising events. Implementing comprehensive company policies and procedures to establish appropriate behavioural expectations, both in the immediate setting of the workplace and at offsite work events, will help to prevent and reduce incidents from occurring. Consistent, thorough, and documented communication to employees about company policies and procedures is required to help protect employers from workplace related claims. A Workplace Events Checklist is provided below to assist with the finer details of risk prevention.
In cases where the preventative measures did not provide a catch-all, employers need to promptly and thoroughly investigate the resulting incident/s.
For more information on how to prepare for the upcoming festive function or for advice on managing poor behaviour at such events, contact the CCI HR experts at the Employee Relations Advice Centre on (08) 9365 7660 or email firstname.lastname@example.org