Everyone loves a good work Christmas party. However, left unmanaged, a Christmas party can quickly descend into a legal minefield. Potential pitfalls include:
(a) Damage to the professional reputation of a business as well as that of its employees.
(b) The bringing of personal injury claims for any workplace injury sustained at work related functions.
(c) Increased absenteeism: if a worker needs time off to recover from an incident, or a staff member the subject of disciplinary action needs to be stood down or suspended pending a workplace investigation.
(d) Unfair dismissal claims: if the complainant believes that because of the alleged offender’s misconduct, and an employer’s failure to deal with it, they have been left with no choice but to resign.
(e) A discrimination claim being brought in the Anti-Discrimination Board of NSW and depending what happens there, a referral to the NSW Civil and Administrative Tribunal (NCAT).
(f) A discrimination claim being brought in the Australian Human Rights Commission.
(g) A bullying claim being brought to Fair Work Australia.
(h) Being investigated by the Fair Work Ombudsman.
(i) A Safe Work Australia/NSW complaint being instituted (due to a failure to provide a safe workplace).
(j) Adverse action claims.
(k) Other actions in law.
(l) Increased costs e.g. if property is damaged (be sure to see what conduct is covered by your insurance policies for work related parties and events!).
Case Study: Karaoke Christmas Party
A few years back, I was asked to assist with a matter where a business organised a Christmas dinner followed by a karaoke session at a bar for its employees. The night started with food, drinks, music and fun only to be spoilt by the taking of illicit drugs as well as a sexual assault allegation being made against one of the staff members.
From the outset, it was clear that the organisation simply hadn’t planned for anything to go amiss. The prospect of serious misconduct, let alone alleged criminal conduct, simply hadn’t been countenanced. To the extent they existed, policies and procedures relating to expectations around staff behaviour, drug and alcohol use and sexual harassment were either lacking in prominence or piecemeal.
And because of the lack of clarity around policies and procedures, not only was the investigation slow to get off the mark but it also proceeded in a disorganised fashion. Rumours (many of which were factually incorrect) quickly spread leading to significant organisational damage.
The matter quickly escalated into a managerial nightmare, as senior personnel scrambled as to how to respond.
What might have been done differently?
At a minimum the following would have been of assistance:
1. Workplace policies pertaining to drugs and alcohol, bullying, victimisation, discrimination, harassment (including sexual harassment) and Occupational Health and Safety should have been explicit, embedded and reinforced in the overall organisational culture.
2. Staff members should have been reminded of these polices, both by email and during workplace meetings, immediately prior to the Christmas function. Rather than just reciting legalistic policies and procedures, and so that there was no room for misinterpretation, staff members should have been given practical examples setting out types of unacceptable workplace behaviour.
3. It became clear that the company had no proper demarcation between its work Christmas party and what was to happen afterwards. Organisations need to be unambiguous about when their Christmas parties come to an end and make it plain that any ‘after parties’ are not the responsibility of the organisation.
4. An independent investigator/lawyer should have been brought in to assist with the handling of the matter. Unfortunately, in this matter, management attempted to investigate various allegations from start to finish. This led to criticism from the lawyers acting for the impugned staff members that the organisation was not interested in being impartial, objective and/or motivated by a desire to arrive at the truth, but instead focussed solely on preserving the company’s reputation.
5. A proper grievance policy should have been in place and developed in consultation with an experienced employment lawyer.
6. Closed Circuit TV (CCTV) footage should have been obtained at the earliest opportunity. Whether it be in restaurants or bars, the prevalence of CCTV footage today is astounding. In the early stages of the investigation several staff members, including those that were apparently well-affected by drugs and alcohol, were speculating as to what had occurred at various points in the evening in circumstances where entire events were captured on CCTV footage. It was not until lawyers became involved that the thought of obtaining the CCTV footage from the Restaurant and Karaoke Bar was raised. Once received, it became clear that many of the secondary accounts taken by the investigator were factually inconsistent and incomplete when verified against the CCTV footage.
7. Senior staff members should lead by example. Management should be living up to the values and ethics that the organisation espouses. In this case, when one of the senior managers attempted to take disciplinary measures against one of the more junior staff members involved in the inappropriate behaviour, the senior manager was reminded by the junior employee that he had routinely taken cocaine with him at work functions in the preceding year. This led to allegations of double standards applying and concerns by management that one of their star partners may be the subject of adverse media attention and/or disciplinary action as well as criminal charges (if the junior employee reported the senior partner to police).
Work parties are a great way to build cohesion and reward staff for their hard work. However, as the above case study demonstrates, it is imperative that these events are properly planned and managed to avoid serious legal consequences.
Sebastian De Brennan is a Sydney barrister specialising in employment, human rights and criminal law.