How to help avoid legal fallouts at office end-of-year parties.

Q. Which recent legal cases involve work end-of-year party incidents?

In a recent case, the NSW Justice Department dismissed a policy officer after he admitted to touching the breasts of five women during an end-of-year party. However, a senior manager who had engaged in similar conduct at the same end-of-year party and touched two women didn’t lose his job.

The NSW Industrial Relations Commission found that the dismissal of the policy officer was harsh when compared to the sanction issued to the senior manager and reinstated him. That decision was notwithstanding a finding that the policy officer had breached the employer’s code of conduct and ethics, its dignity and respect policy, and provisions of the NSW Anti-Discrimination Act.

In another case, an employee sued his employer and the operator of a boat on which the employer held its party in relation to an incident in which the employee was hit by a person attending a separate work party on the same boat. Alcohol was served at the parties and the employee had asked a rowdy group, not staff of the employer, to modify their behaviour, which included swearing.

The employee claimed his employer and the boat operator had breached the duty of care they owed to him. The court found that, while they each owed a duty of care to the employee, they didn’t breach that duty because it wasn’t reasonable to take additional steps to protect the employee in the circumstances.

The employee required facial surgery and claimed he suffered permanent injuries including numbness, headaches and loss of memory.

Q. What HR policies should be clarified before holding a work end-of-year party?

It’s advisable for employers to ensure they have the following policies in place prior to their scheduled parties:

• A drug and alcohol policy.
• Code of conduct/expectation standards of behaviour, or inappropriate conduct in the workplace.
• Discrimination and harassment policies, including a prohibition against sexual harassment.
• Occupational health and safety policy, including a prohibition against bullying.

Employers may also want to consider devising policies specific to the party season, or reminders to staff about policies in place and how they apply to functions held during the season.

Employers should communicate their policies and expected standards of behaviour clearly to staff prior to any staff function by means of written communication on staff noticeboards, and broadcast emails to staff and/or posting messages on an intranet or central location and directing staff to that location.Refresher training on policies may also enhance an employer’s ability to enforce those policies.

Q. How can social media use after a work party lead to a bullying claim?

Inappropriate photo posts or other message posts about a workplace party may lead to a claim by an employee against the employee who created the posts and the employer. Those claims can include sexual harassment and bullying.

There have been a number of decisions of the courts and tribunals about what conduct an employee engages in on social media, whether on private computer equipment or in private time, can be actionable by the employer. This area of jurisprudence is developing, but it’s clear that conduct an employee engages in during their private time isn’t always immune from repercussions where that conduct breaches the employee’s employment duties or employer policies.

Federal and state legislation prohibits sexual harassment, and employees now have the ability to seek orders from the Fair Work Commission if they believe they’ve been bullied at work.

It’s important for employers to have policies regarding social media use and to communicate those policies to enable them to defend claims against it or take disciplinary action against staff.

Q. How should HR deal with a work party complaint?

If HR receives a complaint about conduct at a work party, steps it should consider taking include:

• Responding in a timely manner.
• Following any applicable procedures set out in workplace policies that deal with the type of conduct alleged (if such exist).
• Investigating complaints to determine whether the conduct occurred, and surrounding circumstances.
• Establishing whether the conduct breached employer policies and/or the employee’s duties.
• Determining whether disciplinary action is appropriate (if breach findings are made).
• Communicating the outcome of the process to the complainant and employee against whom the allegations were made.

Q. What workplace health and safety laws must management be aware of regarding staff parties?

There are increased obligations on senior executives to ensure risks arising from parties are managed. New occupational health and safety laws in all states and territories except Western Australia and Victoria include a provision that ‘officers’ of the company must exercise due diligence to ensure that obligations under each respective Act are being met.

Due diligence includes having up-to-date knowledge of work health and safety matters, understanding the operations of the business, ensuring there are appropriate resources and processes to eliminate or minimise risks, and ensuring there are processes for complying with any duty or obligation under the legislation. ‘Officer’ has the same meaning as prescribed in the Corporations Act 2009 and therefore includes a director or secretary.

All organisations should therefore ensure that management is aware of, and satisfies, these enhanced corporate governance regulations.