‘Tis the Season to be jolly – Christmas parties and effective risk management for Employers

Christmas Party

‘Tis the Season to be jolly – Christmas parties and effective risk management for Employers

The Christmas season may represent a more casual and light-hearted time amongst your employees, but as a result, professional boundaries are more likely to be crossed, especially at Christmas parties. It is imperative that employers guard against risks of legal actions through appropriate management of end-of-year functions.

The recent case of Keenan v Leighton Boral Amey Joint Venture serves as a warning that employers should put themselves in the best position to ‘prevent things from happening’. In this case, an employee was terminated after he had used offensive language towards a company director, a fellow colleague, and subsequently harassed a number of female colleagues. The Fair Work Commission subsequently deemed that the termination of employment was unfair.

In summary, the Commission found that while there was a valid reason for termination, the outcome was disproportionate to the gravity of the employee’s misconduct. It was also a relevant consideration that while the employer required employees to comply with its code of conduct at the Christmas function, its failure to monitor his conduct and its facilitation of an endless supply of alcoholic beverages was viewed negatively by the Commission.

It is also important to note that conduct which occurs after a Christmas function will only warrant termination of employment if the conduct is likely to cause ‘serious damage’ to an employment relationship or the employer’s interests, or ‘is otherwise incompatible with the employee’s duties as an employee’.

Employers should also be aware that they may be held vicariously liable for the action or omissions of employees which occur at Christmas functions. Such vicariously liability may be lawfully avoided where an employer has adopted reasonable measures to prevent the employee’s unlawful actions from occurring.

Tips & Protections for Employers

In order to avoid costly litigation and employee claims, employer are well advised to adopt the following measures to mitigate risks arising from employee conduct during Christmas functions:

  • Advise employees ahead of any Christmas function of their obligation to comply with organisational policies at any work functions
  • Circulate your Code of Conduct which should include reference to bullying, harassment & sexual harassment in the workplace. Any policy should state that work-related social events, such as Christmas parties, fall within the terms of the policy.
  • Seek to avoid circumstances that lead employees to behave poorly. For example, Christmas parties paired with no limit on alcohol consumption carry a higher risk for misconduct, which can increase an employer’s risk of exposure. Effective management of alcohol, therefore, is imperative.
  • Allocate a designated person(s) at the function responsible for monitoring behaviour and overseeing a responsible service of alcohol.
  • Circulate the organisation’s Social Media policy to ensure employees are aware of any rules regarding responsible social media usage, both during and following the Christmas function. This should include rules relating to the publishing of photographs to prevent any privacy violations of other staff. Further, employees should be reminded that no material should be uploaded onto social media which has the potential to undermine the company’s reputation.
  • If an incident or complaint arises from a Christmas function, it is important that a thorough investigation is undertaken in accordance with disciplinary & performance management procedures. It is important that employers comply with procedural fairness requirements to avert any potential action, such as unfair dismissal.


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