Office cheers or legal fears? How should employers navigate end-of-year functions?

With the Christmas holiday period fast approaching, employers across Australia are planning end-of-year work do’s to celebrate the year. However, with alcohol often in the mix, these get-togethers can quite easily go wrong.

After a tumultuous business year full of ups and downs, it makes sense that a lot of workers are looking forward to reflecting and having a good time at their upcoming end-of-year functions. In their purity, end-of-year functions are a perfect opportunity to celebrate the achievements of 2024.

Paul O’Halloran, partner and head of office, and Alexandra Terrill, managing associate at Dentons, have shared some insight on how Aussie employers can navigate end-of-year functions, highlighting some of the legal ramifications that can manifest if unacceptable behaviour occurs.

“These [end-of-year] events often involve the service of alcohol, creating a lively atmosphere where employees can relax and enjoy themselves. However, these factors can also pose serious legal risks for employers.

“Despite often taking place outside of the workplace, end-of-year functions will generally still be considered ‘work’ due to their connection to the workplace.

”Whether it be recklessly setting coworkers on fire, pushing them into pools, or knocking them into boat propellers, cases demonstrate how quickly a fun gathering can turn into a serious risk for both employees and employers,” said O’Halloran and Terrill.

O’Halloran and Terrill gave two examples of unfair dismissal cases that derived from behaviour at end-of-year functions, highlighting the issues that can arise when alcohol, especially free alcohol, is served at these functions.

“In Brown v Aristocrat Technologies Australia Pty Ltd [2005] AIRC 656, an employee urinated over the side of a restaurant balcony on to diners below at his employer’s Christmas party. Unsurprisingly, the employee was dismissed,” O’Halloran and Terrill said.

“Surprisingly, the employee brought an unfair dismissal claim, which was dismissed. Importantly, the employer protected itself by communicating with employees and union delegates about its expectations as to responsible drinking and behaviour at the party, and repeatedly reminding them that workplace policies would apply at the event.

“In Vai v ALDI Stores [2018] FWC 4118, an employee was dismissed after he threw a glass full of beer at a security guard at a Christmas event, with the glass flying over the heads of his coworkers and into a wall where it shattered.

“The employee unsuccessfully argued his employer had to take some responsibility for his misconduct because it had freely supplied alcohol at the event. Helpfully for the employer, one of its managers suggested that he stop drinking before the incident occurred.”

When it comes to planning end-of-year work functions, O’Halloran and Terrill believe employers must be proactive in their approach. Ensuring that misconduct doesn’t occur takes detailed steps, like making sure that health and safety risks are negated.

“Employers need to be proactive at this time of year, taking reasonable steps to prevent misconduct or risks to health and safety – as is demonstrated by the above cases. The importance of acting proactively has become even more pronounced due to the new positive duties placed on employers to prevent sexual harassment, sex discrimination and hostile workplace environments.”

O’Halloran and Terrill offered some advice to employers: “If you are holding an end-of-year function, ask yourself:

• “Do you have workplace policies dealing with appropriate and unacceptable workplace behaviour, and are employees educated in relation to such policies?

• “Will there be communications in relation to expectations around staff behaviour at the event, including in relation to alcohol consumption?

• “Is there a nominated person who will be responsible for ensuring the above is observed during the function?

• “Will you be serving alcohol responsibly, including by offering food and non-alcoholic drinks to employees?

• “Do you have a plan to assist employees in getting home safely after the event, particularly where they have been drinking?”