HR Headaches over Christmas: no ‘silly season’ leave pass

Christmas celebrations can often bring out some bizarre workplace behaviour. Add alcohol to the Christmas mix, and it can be a disastrous combination. Without careful planning, Christmas parties can become a discrimination minefield. Discrimination and bullying complaints are often the result of alcohol-fuelled inappropriate behaviour at work Christmas functions, where alcohol releases inhibitions and the year’s frustrations and tensions can explode.

There is no silly season leave pass. Employers need to ensure that staff adhere to normal behavioural codes to minimise the potential for complaints about inappropriate workplace behaviour.

The legal obligations of employers continue to apply during work Christmas parties. Employers owe a duty of care to their employees and must take reasonable steps to reduce potential risks to their health and safety. Employers are vicariously liable for employees’ misconduct unless the employer can show it has taken all reasonable steps to prevent the conduct from occurring. The fact that the obligation extends to work Christmas parties and other work-related functions is supported by case law.

A recent case at the Fair Work Commission highlights the contentious nature of employers serving alcohol at work functions. It is alleged the male employee, who was a Team Leader in a large building company, had about 10 beers and one vodka and coke prior to and at the work Christmas Party in December 2014. At the party he allegedly told a company director and a senior project manager to “f— off” and called a female employee a “bitch”. He also asked a colleague “who the f— are you? What do you even do here?” The employee was dismissed when he returned to work in January 2015.

The Fair Work Commission determined that the employee was unfairly sacked and that employers may not be in a position to insist on standards of conduct at functions if they serve unlimited amounts of free alcohol.

Kris Kringles can also easily offend and expose employers to bullying and sexual harassment claims. This has occurred in the past with gifts of lingerie, sex toys and other inappropriate items such as a reindeer that produced animal droppings, which implied a public service economist’s economic modelling was animal dung.

Furthermore, while work Christmas parties are corporate and generally secular rather than religious events, employers need to take care to offer appropriate leeway for those non-Christians seeking to celebrate other religious festivals eg. offering appropriate leave arrangements.

A daytime function may also facilitate the inclusion of more employees than an evening function, for example those with parental responsibilities, and reduce the expectations of alcohol being served.

Good practice suggests that, before a festive function, employees should be reminded that it is a work event and that appropriate standards of behaviour, as set out in your workplace policies, are expected. Set a start and finish time for the function and make it clear that events/activities that occur outside of this time frame are not endorsed by the employer.

Limiting the number of Christmas Functions within an organisation gives management greater control over festivities. This can help minimise the potential for bullying and discrimination complaints. This practice ensures all functions are viewed through a HR lens.

Employers also need to carefully consider whether to serve alcohol at work function or, if so, how. This includes whether it will be unlimited bar and the length of time this will be for and whether they are responsible for any after parties that occur.

Employers also need to have up-to-date policies and procedures on bullying and harassment, discrimination, social media, work health and safety, and drug and alcohol use.

iHR Australia believes that anti-bullying and anti-discrimination training can also help managers and staff identify not only bullying and discrimination and how to prevent it, but demonstrate what leadership styles can reduce the instance of bullying or harassment. iHR Australia’s training does more than inform about lawful behaviour – it addresses desired workplace behaviour and practices that reflect organisational values, improve culture and increase motivation and staff engagement.