Released 9/12/2009

By Greg Kerr

The “silly season” is almost upon us. Planning parties is in full swing. Unfortunately, the silly season can also bring employers unwelcome presents in the form of unacceptable conduct that will create angst and potentially expensive liability.

Will your staff Christmas party expose you to some or all of the following:

• Breaches of the OHS Act?
• Workers Compensation claims by employees who injured themselves after drinking to excess at the work Christmas party?
• OHS or disciplinary incidents involving employees who are drunk, skylarking or fighting?
• Complaints of sexual harassment, bullying, or discrimination?

Here are some pointers to help you plan ahead and avoid or deal with these issues.

This newsletter is no substitute for specific advice about the needs of you and your business. Please contact us if you are uncertain or need any further information.

OHS & Workers Compensation Risks

Employers may incur liability in the event of an alcohol-related injury at a work Christmas party, especially if the function is being held on work premises during usual working hours and the employer provides the alcohol. If anyone has an "accident”, there may be a significant risk of either or both any injuries being compensable and the employer being in breach of the OHS Act.

Having a party outside working hours and away from the premises may not be enough to remove all risk of liability, although it would certainly reduce it very substantially and place the primary liability on the licensee if held at licensed premises, particularly if attendance was voluntary.

There are some steps employers can take to manage the risks, including having documented evidence of a risk analysis and the steps taken (e.g. in the form of notes of a briefing to the people who will be looking after the serving of alcohol).

Think about some or all of the following suggestions as a minimum:

• have staff responsible for serving alcohol- don’t allow free access;
• ensure that serving staff clearly understand that they are not to serve alcohol to anyone who appears to be intoxicated (make it clear to all staff that this will happen and management will back the serving staff);
• nominate management or supervisory personnel to keep an eye out for anyone who appears to be intoxicated and check what transport arrangements they have made- if none, tell them that they are not to drive home but make sure they contact someone to give them a lift, or arrange transport or a cab (at the employee's expense, or get them to sign that they agree the fare will be recovered from their wages if paid by the company);

Other options that might be considered:

• a drinks ticket system which limits the number of drinks available to an individual and does not allow staff to give their unused tickets to others or get more than one drink at a time (avoid the risk of intoxicated staff being able get more grog via others when they would not be served if they fronted the bar personally);
• encourage staff to pre-organise "designated-driver" car pools or shared lifts and facilitating the arrangements (e.g. a gift or recognition for designated-drivers);
• organise a shuttle bus or other transport, if practicable;
• if you know any responsible and willing people (may be members of staff), organise teams of 2 (for personal security and manual handling reasons) who will drive the intoxicated person home;
• provide secure parking for the cars of staff who end up not being able to drive home (but make it clear in writing in advance that it is used at "owner's risk" and the company does not take liability for any loss or damage.

However, if you do end up with a member of staff who, despite all precautions, gets drunk and insists on driving home, bear in mind that you cannot physically restrain them or forcibly take their car keys. You might tell them that if they try to drive you will call the police.

Fighting, Sky-larking and Bullying

The risk of such behaviour increases with alcohol intake, so employers and managers need to be especially alert for it at Christmas parties and intervene early. The normal rules apply, especially OHS policies and procedures.

If disciplinary action is going to result, remember to follow proper procedures:

• investigate thoroughly (e.g. check the various versions of events);
• make sure any employees being disciplined are told clearly what they are accused of and given a reasonable opportunity to put their side;
• take any mitigating factors into account (drunkenness is not one of them!);
• be fair and consistent in the treatment of all parties involved in any incident; and
• DOCUMENT what you do.

Alternatives

We suggest giving serious consideration to having the party at licensed premises and out of hours. Many employers are already doing this to minimise these risks. Such an arrangement also avoids any perceived contradiction between having a strong drug and alcohol policy and nevertheless encouraging alcohol consumption on site, even if only for a once a year celebration.

Sex Harassment and Discrimination

Another risk at such functions is sexual harassment. Employers and managers needs to be alert to ensure that any such incidents are dealt with or defused quickly and effectively. Staff need to understand that the normal rules are not suspended because it is a staff Christmas party, and that being tanked is not an excuse.

This is not a matter of “political correctness”. It is about conduct that genuinely upsets and embarrasses people - physical behaviours such as unwelcome touching or hugging, non-physical behaviours such as unwelcome sexually explicit comments, sexually suggestive jokes or intrusive questions about a person’s personal life. All of these may amount to sexual harassment even if they are a “one-off” occurrence and not ongoing.

It is important that employers (and staff) understand that it can be a matter of perception and reasonableness: one person’s “innocent Christmas cuddle” may be perceived by the recipient as an affront or offensive, or even threatening.

If a staff member makes a formal complaint to either Federal or State Discrimination bodies and it is found that the employer failed to act on a complaint or failed to deal with it effectively, this can lead to a great deal of unpleasantness in the workplace and expensive compensation payments by both the employer and the harasser.

Other forms of Discrimination

While sexual harassment may be the most obvious form of discrimination that is likely to occur at Christmas parties, it is not the only one. Employers should also keep in mind the possibility of harassment or discrimination based on race, ethnic background, sexual preference, religion, age or disability and be ready to deal with any incidents positively and promptly.

Although the Christmas season is meant to be the season of Peace and Goodwill to all, in some cases it can be anything but.

Employers need to make positive plans to make sure that they and their employees have themselves a merry little Christmas and avoid the risk of receiving “presents” they would rather be without.

Greg Kerr is from Effective Workplace 4920 8880 www.effectiveworkplace.com.au

WARNING
The information provided in this publication is of a general nature only. Do not rely on the contents of this publication without first seeking advice about your specific circumstances from a qualified professional. Neither Effective Workplace Pty Ltd nor Greg Kerr will be responsible for the results of any action taken in reliance on this publication nor for any error or omission in it. The author and publisher expressly disclaim any and all liability and responsibility to any person, whether a reader of this publication or not, in respect of anything and of the consequences of anything done or omitted to be done by any such person in reliance, whether wholly or partially, upon the whole or any party of the contents of this publication.