Min­imis­ing Risks at End of Year Parties

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.