Jonathan Mamaril, Director for NB Lawyers – Lawyers for Employers, shares three tips for planning an office Christmas party as part of Recruitment Marketing Magazine’s “Ask an Employment Lawyer” series.
The Fair Work Commission’s recent decision in Chambers v Toll Transport Pty Ltd [1] (the Decision) is a useful reminder for employers. Not all ‘out of work hours’ misconduct by employees may give rise to a valid reason for dismissal, especially in the context of a Christmas party.
The Decision is a welcome segue as we transition to a period of the year where many employers hold Christmas functions to celebrate the end of the year. Many of your team members will be keen for celebrations, especially after dealing with all the challenges from COVID-19. Nonetheless, it’s important for you to temper this keenness by understanding potential employment law risks.
So, if you’re planning an office Christmas party, here’s some information about the recent Fair Work Commission Decision and three tips to keep in mind, so you can focus on the true spirit of the holidays and create a positive experience for your team members.
What happened?
Two employees, both union delegates, attended a union meeting and stayed overnight in a hotel. The employer paid for their airfares, accommodation and meals. They were able to attend the union meetings on delegate’s leave – paid leave provided by the employer to attend union training, campaign activities or conferences. Following the conclusion of the union meeting, both employees consumed alcohol at the restaurant of their hotel.
Union delegates are not ‘employed’ by a union. Rather, they are employees of an employer, who are also a member of a union and have accepted specific union responsibilities.
The two employees had a disagreement with each other. It became violent, and one of the employees tore off his jumper and goaded the other into a fight. The other employee acted in self-defence and knocked him down. Neither employee was wearing a uniform of their employer at the time of the fight.
The employer terminated both employees, after an investigation, for reasons of serious misconduct (although they were paid their notice periods). The employer asserted the fight constituted ‘out of work hours’ misconduct because both employees were on delegate’s leave (paid by the employer), staying at accommodation and enjoying meals paid by the employer and the fight was caused by a work-related conversation.
Have an employment law question for Jonathan? Email editor@www.rmm.onenazmul.dev
What was The Decision?
Certain ‘out of work hours’ conduct can justify an employee dismissal, depending on whether it damages the employer’s interests (such as reputation) or is otherwise incompatible with an employee’s duties. The Commission applied the decision in Rose v Telstra [2], which states: certain circumstances employee’s employment may be legally terminated due to out-of-hours conduct. This includes conduct that
- is likely to cause serious damage to the relationship between the employer and employee
- damages the employer’s interests
- is incompatible with the employee’s duty as an employee.
In practical terms, the employees in the Decision sought to argue that the fight occurred during their private time and when they were on leave, away from work, to perform union duties. They were not wearing uniforms and therefore the reputation of their employer could not have been affected.
The Commission accepted the employee’s arguments. They agreed there was no evidence the employer’s reputation or interests had been damaged. No members of the public witnessed the fight and associated it with the employer. The Commission accepted the employees were on leave, and therefore not ‘at work’. Even if it was assumed the employees’ attendance at the union meetings were connected to the workplace, what they chose to do after the meetings was their own ‘free time’. Furthermore, the employer voluntarily paid for the expenses. The organisation was under no obligation to do so.
The cooperation of the employees during the employer’s investigation was viewed favourably. This was an important factor considered by the Commission, weighing against the employee indicating he was rejecting his employment contract.
With the consequences of this decision in mind, here are three tips to keep in mind when planning your workplace Christmas party.
1. Clarify the scope of your event
- Specify the hours that will constitute the ‘official’ work Christmas party. Any private arrangements between employees afterwards would not form part of the Christmas party. Employees bear their own risks when attending non-official events.
- Remind employees workplace policies will apply during the ‘official’ event.
- If non-employees are attending (such as family members, guests or clients), consider reminding employees, in writing, of appropriate standards of behaviour.
2. Conduct refresher training on policies
- If you have a code of conduct or appropriate behaviour policy in place, consider undertaking brief refresher training prior to your Christmas party.
- Consider if there are appropriate safeguards for pictures taken by employees at the Christmas party. (Think about whether you need to issue any directions to your employees to avoid posting inappropriate pictures of the Christmas party.)
- Emphasise any social media policies you have in place.
- Ensure your senior employees are reminded of the need to supervise junior employees and display exemplary behaviour consistent with workplace policies.
3. Planning ahead of the Christmas party
- Inform employees who they can confidentially report their concerns to in the event of an incident at a work Christmas party. Be prepared to conduct an investigation at short notice.
- If alcohol is on offer, ensure employees are not drinking to excess and increasing the risk of injuring themselves. Manage health and safety obligations, for example, by ensuring employees are provided with transportation.
Have an employment law question for Jonathan? Email editor@www.rmm.onenazmul.dev
Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.
[1] Wayne Chambers v Toll Transport Pty Ltd [2020] FWC 5819.
[2] Rose v Telstra [1998] AIRC 1592