Jim Roberts

Partner

Alison Maelzer

Solicitor

Kirby Kleingeld

Solicitor

As the year draws to a close both employees and employers alike are looking forward to the end of the year, and some well-deserved rest and relaxation. Many are also looking to celebrate the year that has passed with an end of year function. While it is great to celebrate, some key health and safety considerations should be front of mind. This article outlines the obligations owed by employees and employers this festive party season.

Employer’s obligations

Under the Health and Safety at Work Act 2015 (HSWA), PCBUs (including employers) are required to provide a safe working environment for all employees, contractors, and visitors on their worksites/premises, and to ensure the safety of workers while at work. This is an obligation that extends to any functions an employer organises as part of work, or on work premises. No matter where your company chooses to celebrate (on-site or off), it is important to remember that it is still a work event, meaning the employer’s and employees’ health and safety obligations continue to apply.

Employers must ensure the safety of all attendees (including plus ones), meaning that employers must take all reasonably practicable steps to eliminate risks to health and safety. If this is not possible, the employer must minimise those risks as far as reasonably practicable.  

There are a number of ways that an employer can prevent incidents from arising and ensure that its work function is a success. This includes carrying out a risk assessment, identifying potential risks, and taking steps to eliminate or minimise those risks. This might include such steps as:

• Setting expectations – Send a reminder to employees in advance of the event, including any relevant policies (e.g. code of conduct, bullying, harassment or discrimination policies). Explain the impact of these policies in clear terms and any additional expectations as to the expected behaviour.
• Good host responsibilities – Provide food, non-alcoholic drinks, and do not serve intoxicated persons (limit and control alcohol availability).
• A keen eye and a voice of reason – Have a few sober managers present at the party to keep an eye on things and intervene if necessary.
• Encourage collective responsibility – Encourage employees to look out for their colleagues’ safety and wellbeing (particularly in relation to alcohol consumption and behaviour).
• Transportation – Consider prohibiting work vehicles and discouraging private vehicles from being taken to functions unless the driver is a designated sober driver. Employers should also consider arranging for transport home from the function (e.g. buses, ride share services) or accommodation for staff and their plus ones.
• Finally, don’t kill the fun – Remind employees it is fun, a celebration, and that rowdy and intoxicated employees spoil the party for everyone.

Employees’ obligations 

The pressure is not just on employers when it comes to health and safety. Employees’ obligations to follow the employer’s rules and instructions around health and safety, and to take reasonable care of themselves and others will still apply.  

Employees should also be mindful of the usual expectations around behaviour that are contained within their employment agreement and any workplace policies remain in full force. “It was at the Christmas party” is unlikely to be a successful defence to an allegation of misconduct!

An employee’s behaviour can easily stray into misconduct, particularly where alcohol is involved. These incidents commonly include two (or more!) employees, and can escalate quickly, and involve other people or property.  

Any of these types of incidents (together with other possibilities, such as harassment, violence, damage to property, theft, etc.) are capable of being misconduct and an employer could consider running a disciplinary process. Unfortunately, work party misconduct keeps HR teams and employment lawyers busy!

Dealing with complaints

In the event that a partygoer gets out of hand, or a complaint is raised as a result of the behaviour at a work party or end of year function, the concern will need to be dealt with. Early and safe intervention at the time is ideal. However, any after-event process should occur in a timely manner and through a fair investigation process (in accordance with the duty of good faith) like any other allegation of misconduct or serious misconduct.

Although managers (including the potential decision-maker for any disciplinary action) may have personally witnessed the misconduct or behaviour in question at the event, a full and fair investigation is still necessary before any disciplinary action or sanction can be imposed. Any investigation should be carried out in accordance with the employee’s employment agreement and the employer’s relevant policies and procedures.

Whether disciplinary action is necessary in the circumstance will be fact specific and require a careful analysis of the situation ensuring that the conduct is sufficiently connected to the employee’s employment. If you require further information regarding how to carry out a proper disciplinary process, see our article here.

In order to prevent holiday hijinks at your next work function, employers should take active steps to protect their staff, and employees should be mindful of their conduct at these events. If you have any questions about your employment or health and safety obligations at work functions, please get in touch with the Restaurant Association helpline team.

Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.