The festive season is fast approaching, and for many employers this means hosting functions to celebrate the year. Whilst it is natural for employers to want to reward employees with an end of year function, 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 ensure everyone enjoys the festivities. Employers should ‘expect the best but prepare for the worst’. This includes being aware of the risks involved in hosting end of year functions and what strategies to implement to mitigate those risks.
Under anti-discrimination and workplace health and safety laws, employers and employees have a legal duty of care. As part of the employers duty, the laws require employers to take all reasonable steps to provide a safe work environment free from hazards. Regardless if functions are held off site and out of hours the boundaries of the ‘work environment’ and therefore employer liability can extend beyond the immediate setting, such as an office, where there is a clear connection to the workplace. The following cases explore the extension of the ‘work environment’ and, in conjunction, employer liability with regards to organised work functions.
Case Example – Sexual Harassment
In the case of Vegara v Ewin 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 function where the applicant became intoxicated and following the function 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.
Case Example – Workers Compensation
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 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 functions, and employers should keep in mind ‘prevention is always better than the cure’. Implementing comprehensive company policies and procedures to establish appropriate behavioural expectations, both in the immediate setting of the workplace and at off site work functions, 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 Functions Checklist is provided below to assist with the finer details of risk prevention.
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
 Vegara v Ewin  FCAFC 100 (12 August 2014)
 Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor  ICQ 016 (29 May 2015)