15 December 2011 Minimising Risks at End of Year Parties

By Warwick Ryan, Partner and Nathan Day, Law Clerk

In Brief

End of year parties present one of the most difficult challenges for employers in firstly minimising risks of liability for the acts of their employees and secondly taking appropriate disciplinary measures for misbehaving employees.

Explaining Acceptable Conduct to Employees

The most important step in firstly avoiding any incidents at an end of year party and secondly minimising the risk of being held vicariously liable for the acts of an employee, is to clearly explain to the employees what is acceptable conduct. This is because the legislation allows for an employer to avoid liability for the acts of an employee where they have taken reasonable steps to prevent the incident.

There can be a variety of steps the employer can take to meet this standard. The primary step would be for the employer to have a clear workplace policy dealing with sexual harassment and/or discrimination. The employer should hold training seminars on the policy and require all employees to attend and sign an acknowledgement that they understand:

  1. The policy;
  2. That they are bound by the policy; and
  3. The consequences of breaching the policy.

There is a tendency for such training sessions to be dealt with in a cursory fashion. Employers will need to engage in a meaningful discussion with the employees on the policy to ensure that they fully understand their obligations.

In explaining what is acceptable conduct to employees, employers should pay particular attention to the following matters:

  1. Comments or conduct of a sexual nature are clearly inappropriate and can be found to be unlawful under the Sex Discrimination Act 1984 (Cth.). Although sexual harassment requires that such comments or conduct is unwelcome, it is most likely that the person being harassed will not voice their concerns until after the party. This is especially the case in relation to comments/conduct between people in a power relationship (i.e. a manager and a staff member) where the staff member may not voice their objections for fear of repercussions.
  2. Racist comments are similarly inappropriate and unlawful under the Racial Discrimination Act 1975.
Controlling the Party

Although training employees on what is acceptable conduct is particularly helpful, there is unfortunately no single way for employers to ensure that all employees will behave appropriately at an end of year party. This is especially so given the likely presence of alcohol.

In these circumstances, the most viable option for employers is to seek to obtain control. Such control may be obtained by:

  1. Limiting the amount of available alcohol where the party is held in-house or alternatively setting an appropriate tab limit where the party is externally held.
  2. Looking out for clearly intoxicated people who are getting out of control and immediately arranging for a taxi or transport to take them home.
  3. Structuring the events for the party and thereby reducing the amount of alcohol consumption.
Taking Appropriate Disciplinary Action

In the event that an employee has misbehaved and engaged in either sexual harassment, racial discrimination or other unlawful activity, the employer will need to take the complaint seriously and have in a place a process of dealing with the complaint. This will involve conducting a thorough investigation into the matter whilst the misbehaving employee is suspended without pay pending the findings of the investigation.

It can be difficult for an employer to conduct such investigations where the complainant is reluctant to formalise their complaint. However, the employer may conduct an investigation where there are third party witnesses who are willing to give statements. After taking statements of all involved and you come to the view that it is more likely than not that the incident occurred, it is prudent to take disciplinary action against the individual concerned which may include termination of employment.

Although the misbehaviour will need to be in connection with the employment relationship, it can almost always be assumed that an incident occurring at an end of year work party will satisfy this requirement.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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