Getting together with colleagues for important events or shared celebrations can help to build a healthy workplace culture, but making sure these events don’t lead to a legal hangover for employers is equally important.

From misadventure to misconduct, workers compensation to negative press – these potential risks of the party season can be navigated by putting guardrails up now.

Jessie Murphy-Allen is a member of Finlaysons workplace issues and employment safety practice. She notes there have been plenty of Christmas party incidents in recent years that have hit the courts and the news. Particularly, ones involving alcohol and employees.

In 2018, the Fair Work Commission found the dismissal of an Aldi employee to be fair after he threw a full glass of beer at other party attendees. The party had been organised by section leaders, not managers, but it was approved by Aldi and paid for by them.

The following year, in Drake v BHP Coal, the Fair Work Commission found the company had a valid reason for dismissing an employee who verbally abused and punched another section’s supervisor at a work Christmas function, and made an offensive comment to a female colleague at the same event.

While both were upheld as valid dismissals, the time spent defending the cases and the attendant expenses could have been avoided by ensuring what Murphy-Allen called “having hygiene” around company communications, processes and procedures.

She said this is particularly pertinent in the lead-up to a Christmas party, where an unfair dismissal claim could be lodged pre-Christmas.

“The timeframes in relation to an unfair dismissal claim are quite tight – as little as two months from an incident to a hearing – which means that organisations or employers have to throw a lot of resources at them,” she said.

“The fact that you’re also in the ‘silly season’ adds extra time pressure when companies may be looking to shut down for the holidays.”

Dealing with risk

Companies can mitigate risk with clear policies and by following the correct procedures should one of them be breached.

However, Murphy-Allen said it is prudent to get legal advice when preparing policies or before terminating workers.

“It will give you all of the tools to minimise the risks associated with making a decision and, with someone on your side, you might avoid an unfair dismissal claim altogether,” she said.

Late last year, both Sky News and radio station 2GB terminated their contracts with high-profile broadcaster Chris Smith following complaints about his alleged behaviour toward several women during the 2022 Sky News Christmas party.

To not do so promptly could have left them falling foul of Australia’s workplace health and safety laws.

“Employers have an obligation to individual employees, and to the workforce as a whole, to ensure a safe workplace and that workers are not subjected to harassment or bullying when they go to work,” Murphy-Allen said.

“There has been any number of cases where failing to address sexual harassment at a work event has resulted in the employer being liable for the damage suffered by the person who was the subject of the harassment.”

Negative press

Another area that Murphy-Allen recommends tightening up before the festive season is social media policy.

“The next generations who are now entering the workforce are very much documenting their day-to-day life, including their work, on TikTok or other social media,” she said.

“If you don’t clearly articulate what the policy is and what the expectations are, it makes it really difficult if something is posted that’s not in the business’s interest, or if there are privacy concerns in relation to its content.”

With social media’s ability to quickly go viral and fuel any flames, the fallout can be negative press across multiple media channels and outlets.

Not responding quickly – possibly in mere hours – will only make things worse, so here prevention is definitely better than cure.

“Without a procedure or policy, there are no hard and fast tools that you can rely on to address those concerns.

“The last thing you want to do is end up with having to deal with a defamation claim because of what’s been put up by one of your employees on social media.”

Finlaysons’ tips for successfully navigating the Christmas party season:

• Set clear expectations about behaviour ahead of the event – communicate a reminder that workplace policies regarding behaviour, social media, etc will still apply.
• Have a clear start and end time for the function.
• Appoint someone to be responsible for ensuring things don’t get out of hand.
• Over cater with food, particularly if there will be easy access to alcohol and provide non-alcoholic drinks.
• Gain people’s attention to make a clear announcement when the event has come to its close and have senior staff and executives exit the venue.
• If there is a ‘spontaneous’ event afterwards, such as moving to a new venue, again have a clear start and end time.
• Provide transport options for people to get home safely.
• If something does happen – seek legal advice before taking action and promptly address the situation.

Finlaysons is a leading independent corporate and commercial law firm in Australia, with offices in Adelaide and Darwin, working with clients across Australia and internationally. 

Jessie Murphy-Allen regularly appears as both instructing solicitor and counsel in the State Courts, SAET, SACAT, Australian Human Rights Commission, Fair Work Commission, Equal Opportunity Commission, Federal Court and Federal Circuit Court. Her depth of knowledge across workplace, insurance and litigation means that she is able to unpick complex matters which give rise to claims across different areas of law and jurisdictions. Connect on LinkedIn.

This article provides general information only and does not constitute legal advice. Do not act on the basis of this content, but seek specific advice from your legal adviser.