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It’s that time of year again, the so-called ‘silly season’. Amidst the general goodwill and cheer of the festive season, there is no better time for employees and employers to give some thought to how to get through the holiday period in one piece and without incident.

In the spirit of the ‘12 Days of Christmas’, we give you 12 tips to navigate the silly season.

Tip # 1 – Perilous parties

The most common of all workplace concerns at this time of year is inappropriate conduct at the Christmas party. Unfortunately for some, the employment relationship is not put on hold for the night of the Christmas party. It is well accepted that what happens outside of the office can still affect the employment relationship, and undoubtedly will in the case of an office-sponsored Christmas party.

In recent cases, the ‘workplace’ has been found to extend to the pub across the road from the office and the after-party following the office Christmas party. Indeed, even where poor conduct occurs at a venue or function that is not organised by the employer (such as a hotel room shared by a number of employees), there still may be a sufficient connection to bring this conduct into the workplace. Put simply, employers may be vicariously liable for employees’ conduct, and employees may face disciplinary action for conduct which occurs at the Christmas party, after-party and also at client functions.

When it comes to avoiding liability, prevention is often better than cure. Employers should tread carefully before endorsing after-parties or ‘kicking on’. Employers should also advise employees of the need for a plan to get home safely at the conclusion of the function, to avoid drink-driving or other risks arising from employees travelling home late at night.

Tip # 2 – Fear Facebook

When the party is over, no employee or employer wants a visit from ‘the ghost of Christmas past’: Facebook. The wide use of social media can convert what seemed like a good idea on the night into a nightmare for employers and employees.

To avoid these risks, employers should consider:

  • reminding employees that use of social media which reflects poorly on the employer, or which constitutes bullying, harassment or discrimination against other employees, can result in discipline;
  • ‘unplugged’ Christmas parties, where only the business’s marketing team and/or HR team take photographs; or
  • advising supervisors and managers to intervene to stop their colleague from becoming an ‘internet sensation’.

Tip # 3 – Intention’s irrelevant

General hijinks, a festive mood and the relaxed atmosphere during December and January can often lead people to make poor choices – and we are not talking about the person who brings out the reindeer sweater once a year.

Often, an employee accused of inappropriate conduct will contend that their comments or conduct were ‘just a bit of fun’ and they did not mean to offend anyone. Of course, when it comes to discrimination, harassment and bullying, the motives and intentions of the individual are irrelevant.

An employer who turns a blind eye to conduct on the basis that it is ‘just a bit of fun’ or that ‘no harm was meant’, not only exposes itself to potential legal liability but also risks the development of an undesirable workplace culture.

Tip # 4 – Horrendous hangover

Employers can feel compelled to put on an event where employees can eat, drink and be merry. However, employers and employees alike should remember that the ‘too drunk defence’ is only shortly used before pleas of mercy.

Employers can still be vicariously liable for the actions of their intoxicated employees (particularly where they have supplied the alcohol to employees), and employees can still be subject to disciplinary action regardless of how much alcohol has been consumed. Employers may also be liable for prosecution where the over-consumption of alcohol leads to work health and safety (‘WHS’) risks for employees and others.

Employers need to consider what steps can be put in place to avoid matters getting out of hand. This can include:

  • reminding employees prior to the function to recognise their limits when drinking alcohol;
  • ensuring the venue follows the responsible service of alcohol principles;
  • ensuring that substantial food and various non-alcoholic drinks (including interesting and appetising drinks such as non-alcoholic eggnog …) are provided throughout the function; and
  • having company representatives present to monitor behaviour at the function and ensuring they are equipped to respond to matters before any major problems arise.

Tip # 5 – Warn workers

The above ingredients add up to the need to warn employees and contractors about what is and isn’t appropriate. Cases every year highlight that some employees fail to understand what is inappropriate conduct. Inappropriate conduct can range from unwanted physical contact to pointed verbal barbs. Physical violence is also, unfortunately, not unheard of in the context of alcohol-induced disagreements at a Christmas party. Such conduct may result from a lack of awareness about appropriate boundaries – for which the employer could be held responsible. It is therefore important that employees are provided with information which clearly identifies the expected standards of behaviour, and examples of what will constitute unacceptable behaviour.

Employees should be reminded of these standards during the festive season, rather than relying on existing policies and a training session held a few years ago.

Tip # 6 – Watch welfare

Outside of the pitfalls of decorating the workplace – which touches on physical risks arising from electrical decorations and blocking fire exits – employers should be mindful of other work health and safety risks for employees. In particular, it is important to recognise that the holiday season can be a time of anxiety and stress for a number of employees.

Employers should be aware of the additional support employees might require as they balance increased family commitments and fluctuating workloads over the December period. This is a fitting time to check in with employees and remind them of the systems and processes in place to help them through the holiday season.

Tip # 7 – Spiteful Santas

Kris Kringle is typically an innocent and enjoyable way to allow employees to get to know one another better and dispense gifts, albeit with the potential for a ‘practical joker’ or outright bully to hijack the activity. Not to mention gifts in rude and (for some amusing) shapes.

Employers should make it clear that the giving of inappropriate or spiteful presents, which have the potential to alienate or harass others, will not be tolerated.

Tip # 8 – Excluding employees

Employers and employees should remember there are a number of different ways to celebrate the holiday season – Christmas is only one. Employers should take steps to ensure that all activities and events do not discriminate, either directly or indirectly, between employees. Events and activities should be inclusive and non-specific, so that everyone is able to participate.

This requires planning to make sure that events do not have the effect of excluding certain employees, such as by:

  • involving physical tasks that all employees may not be able to participate in due to illness or injury;
  • placing an unduly strong emphasis on the consumption of alcohol; or
  • taking place on days of the week or at times where some employees are unable to attend due to religious or personal reasons.

Tip # 9 – Investigate incidents

There are times when an employer ought to investigate an employee’s conduct, even where no complaints about the conduct are received. If the conduct would ordinarily be a concern, this shouldn’t change just because it takes place during the festive season. If an employer is informally advised of inappropriate conduct, it should consider whether that conduct could be symptomatic of a broader workplace issue. If the conduct is not addressed at the outset, it could result in a bigger issue down the track.

Employers should also be careful not to make assumptions about guilt based on their own observations during an event – incidents should be fully investigated regardless of whether a manager observed them and the personal views of managers about the behaviour.

Tip # 10 – Don’t delay

While no employer has the efficiency of Santa on Christmas night, it is important that inappropriate conduct is investigated as quickly as is practicable.

Where the investigation process is impacted by employee leave over the Christmas period or a business shutdown, those involved in the investigation should be advised of the delay, the reasons for it, and be kept updated on the timeframe for the investigation.

Martin v Beechworth Montessori Children’s Group Incorporated T/A Beechworth Montessori School [2017] FWC 3314 makes it clear that extensive delays over the holidays can be a factor in making a dismissal unfair.

Tip # 11 – Suitable shutdowns

Most people are happy to take annual leave during the festive season. However, employers should carefully consider directing employees to take annual leave during a shutdown.

For employees covered by modern awards or enterprise agreements, employers should first check if and how an instrument permits them to direct employees to take leave. For award/agreement-free employees, any direction to take annual leave must be ‘reasonable’, with consideration of the needs of both the employee and the business, the custom and practice of the business and the notice given to employees. It is accepted, however, that if your business shuts down over Christmas / New Year it will typically be reasonable to direct employees to take annual leave.

The direction needs to be clear, lest an employee, like that in Hooker v Robert Guy and Sons Pty Ltd [2017] FWC 2046, mistakes the direction for a dismissal and lodges an unfair dismissal claim. Not surprisingly, this claim failed as the employee was not dismissed.

Tip # 12 – Limiting leave

The alternative scenario is also common – with too many employees seeking leave during a busy holiday period. Employers can reasonably refuse leave in most circumstances, depending on the nature and size of the business, whether the period is a particularly busy time for the business and the period of notice provided by the employee.

An example of an unreasonable refusal of leave can be found in Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park [2017] FWC 4626 in which an employee requested leave in January for an overseas holiday during Easter. The employee’s leave application was refused four days before her holiday, far too late to reschedule. The Fair Work Commission decided that this was an unreasonable refusal of leave.

Go forth and be merry!

Not all workplace lawyers are Grinches and we enjoy the silly season as much as everyone else. Hopefully these tips will assist you to avoid a New Year’s employment hangover.

Jack de Flamingh is a partner at Corrs Chambers Westgarth.