WHS and OHS case study: a Christmas party ends in the Fair Work Commission

The Christmas party was typical of many workplace functions: the employer organised it to run from 6pm-10pm at a city hotel. Invitations and notices went out to employees, and as part of the room hire the hotel served drinks and finger food for attendees. The party was an open-bar “Thank You” to staff for their hard work throughout the year. They were reminded to behave appropriately.

During the party an employee allegedly sexually harassed and bullied work colleagues and told his boss to “f*ck off”.

The employee, who was also a union delegate and safety representative, was dismissed but subsequently brought an unfair dismissal claim against his employer.

The employee won his unfair dismissal case despite his behavior, and despite the fact that it was demonstrated that he had consumed alcohol not provided by the employer before the function and had received a prior warning about unacceptable behaviour.

The Commission found that it was “contradictory and self-defeating” for the employer to require compliance with its policies on workplace behaviour and at the same time to allow the unlimited service of free alcohol at the function through an open-bar.

Even where the hotel was bound by rules on the responsible service of alcohol, the employee in question was not refused a drink and nobody from the hotel or the employer had asked him to stop drinking. Further, it was said that the employer had not placed anyone with managerial authority in charge of the function; that it was “let to run itself”.

The decision highlights the importance of companies taking steps to minimise risks at Christmas parties and other out-of-hours work functions. This includes restricting the amount of alcohol served, keeping to a set period of time for the event, and considering how employees will get home safely.

Ensuring that there is managerial supervision of the function is also important. That is, for managers, the Christmas party could be an extension of a day’s work.

For this reason, Ai Group urges all employers to think twice about how they manage their Christmas function, but remains concerned that the Commission’s decision unfairly limits the individual responsibility of employees.



Nicola Street is the Ai Group's National Manager – Workplace Relations Policy. This article was first published on the Ai Groups blog page.


Image sourced from Flickr cc: Tom Godber

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