David Davies and David Chen

Is your workplace ready for the silly season?

David Davies and David Chen

5 November 2017

Employment Policies Events

As the ‘silly season’ approaches, it is time to have another look at past cases to see what lessons might be learnt to help your workplace get through the 2017/2018 season unscathed.

Christmas Parties

The Fair Work Commission frequently hears cases about inappropriate conduct at parties during the silly season, including recent cases about:

  • the woman who took home ten sausages and two salads after a Christmas party without permission1;
  • the man at a Christmas party who, after helping himself to unlimited alcohol, pushed another employee into a swimming pool and got into a fight with his general manager2; and
  • another intoxicated man at a Christmas party who told a director to ‘f**k off mate‘ after being interrupted in a conversation. He then repeatedly asked a female colleague for her phone number. Later, while waiting to catch a taxi to go to another venue, he said to yet another female colleague ‘My mission tonight is to find out what colour knickers you have on (sic).3

All of these cases resulted in termination of employment, litigation and reputational damage and, with a little planning beforehand, may have been able to be avoided.

Below, we deal with two more cases in more detail.

Consumption of alcohol outside of work

An employee left this phone message with her manager;

Hi Michelle, it’s Avril one of your most loved pains in the arse… I admit I have over indulged so I’m taking into account one of the golden rules “be fit for work” and I’m not going to be fit for work so I won’t be there. But um love ya, catch ya on the flip side.’

The employer terminated the employee’s employment on the basis that she was using safety concerns to justify her behaviour in consuming alcohol to an extent that she anticipated that she would be unable to work the next day.

The Fair Work Commission found that there was a valid reason for the dismissal. It said:

This case is similar to the situation of an employee “taking a sicky” without being ill. Here the Applicant ‘took a sicky’ in circumstances where she had voluntarily embarked upon a course of conduct that resulted in incapacity for work. The conduct, while being out of hours conduct at home has a sufficient link with the employment relationship.’

However the Commission also found the dismissal was harsh, as a previous warning given was for different circumstances4, and held that another sanction such as a final warning was the appropriate penalty.

Acceptance of gifts from suppliers

An employee accepted a laptop as a gift from a supplier5. When the employer found out, they dismissed the employee on the basis that she had breached the gifts and entertainment policy which said;

‘A gift, favour, entertainment or hospitality that has a value greater than $100 or could influence your judgement must be immediately reported to Human Resources and returned to the donor as tactfully as possible, or where returning gifts is not possible or appropriate, the gift should be donated to charity.’

The Fair Work Commission held that the dismissal was not harsh, unjust or unreasonable, as the employee had not reported the gifts. The employee had received a copy of the policy and had signed to state that she understood that a breach of policy may result in dismissal. She had also completed bribery and corruption online training that directly referred to the policy.

Lessons

To help you mitigate and manage holiday season risks like those outlined in our case examples:

  • make sure that your workplace policies dealing with appropriate conduct, absenteeism and acceptance of gifts are up to date;
  • distribute and communicate your policies to all staff;
  • warn employees about what constitutes inappropriate behaviour and its consequences; and
  • train your employees and have them sign off on your policies.

If you are having a workplace function where alcohol will be served:

  • review your insurance policies to see the extent of the insurance coverage of the party;
  • undertake a risk assessment of the venue to identify risks and hazards. Swimming pools and balconies are notorious problem areas that might be made out of bounds;
  • pick a location that has transportation options (or provide transport) and direct employees that they should not drive if they intend to drink;
  • send all staff an email expressing the positive intent of the party, together with a caution against inappropriate behaviour and excessive consumption of alcohol, before the party starts;
  • establish clear start and finishing times;
  • appoint a senior person who will stay sober to supervise the party. This person should take appropriate action to avoid escalating behavior, such as sending someone home or if necessary closing the bar;
  • at the party, monitor the service of alcohol and the provision of food and non-alcoholic alternatives. Ensure that underage employees do not have access to alcohol; and
  • if there are any complaints, deal with them early, promptly and properly in line with your policy.

If you are unsure whether your policies are ready for the silly season or if you would like to know more about how best you can manage your workplace, do not hesitate to contact us on the below details to discuss.

David Davies | Partner | +61 2 8248 5807 | ddavies@tglaw.com.au

David Chen | Paralegal | +61 2 8248 5819 | dchen@tglaw.com.au

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Resources:

1 Merrin v Mosman Municipal Council [2016] NSWIRComm 1021.

2 Damien McDaid V Future Engineering and Communications Pty Ltd [2016] FWC 343.

3 Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.

4 Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd [2017] FWC 4630.

5 Hatzisevastos v Iron Mountain Pty Ltd [2015] FWC 770.