Cheers and Fears Series Article 1 – Preparing for your End of Year function

With end of year (EOY) approaching, many businesses will host an EOY function.  These events are a great chance for colleagues to unwind and celebrate the past year.  

Generally, these EOY functions involve food, drinks, and entertainment. These celebrations need to be well planned as although the intention is to celebrate there are some risks that need to be addressed.

Preparation for the EOY function
It is crucial in preparing for your EOY event that you take all reasonable and necessary steps to reduce risks and keep the event as safe and enjoyable as possible.  We suggest:

• Make sure certain policies are in place, that they are up-to-date, and that all employees have read and are aware of them. Essential policies include:
  • appropriate workplace conduct (Code of Conduct). This includes consumption of alcohol if alcohol is going to be served at your event,
  • bullying,
  • harassment, and
  • discrimination
• Consider the time of the event and ensure the venue is appropriate for the event, as well as making sure there are no obvious risks.  Perhaps a lunchtime event is a desirable choice for your workforce.
• Ensure all staff are notified by email and through meetings that the EOY function is a work event and that all employees are required to conduct themselves appropriately and comply with workplace policies and procedures.  It is important to set expectations as to the responsible consumption of alcohol (if it is to be served) and behaviour at the function.  It should also be made clear, before the event, that failing to meet these expectations may result in disciplinary action, including termination of employment.
• If alcohol is supplied, ensure the venue applies responsible service of alcohol legislation. The Fair Work Commission has previously held (McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343) that employers must ‘take steps’ to ensure that alcohol is served responsibly.
• Make sure there is in place a plan for everyone to get home safely.  Provide information on public transport schedules or nearby taxi/rideshare pick-up points in the event invitations. 
• Consider nominating individuals to be the ‘Sober Bob’ for the event. The Fair Work Commission has in the past commented that employers should appoint a manager or supervisor who does not consume alcohol to monitor the event so as to ensure compliance with OH&S obligations and to aid in the avoidance of mishaps (Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156).  For example: ensuring spilled drinks are cleaned up so as to avoid a slip hazard, remove any broken glass etc…
• Notify all staff by email or other means in writing, of the start and finish time for the event and the get-home safely plan.  Specifically state in the email that if employees choose to attend another function/venue after the party, they do so in their own capacity and the employer takes no responsibility for them if they choose to continue to ‘partying on’.
• If it has been previous practice for employees to notify of their safe arrival home after the EOY function, the right to disconnect may mean this is not a reasonable direction.  Employers may want to consider informing employees that if they wish to they can notify a particular person by text message or by email that they have arrived home safely, however it is up to them.

At the Event

• Welcome speeches are a useful opportunity to recognise staff efforts, set the mood for the event and reinforce appropriate workplace conduct;
• Take action if inappropriate conduct occurs, do not ignore it;
• Do not have an open bar with an endless supply of alcohol;
• Make sure food is supplied.  Ensure you cater for any dietary requirements;
• Make sure non-alcoholic drinks are available; and
• Make sure all employees have a safe way to get home, and no employee who has been drinking drives home.

By taking these steps, you can ensure there are more cheers than fears for your EOY function.

Examples of when it has not gone to plan
There are many situations of when an EOY function has not gone to plan. Here are some examples: 

• An employee was dismissed for misconduct after urinating over a restaurant balcony onto people who were dining below, during his work EOY function.  The employee made an application for unfair dismissal against his employer; however, he was unsuccessful (Brown v Aristocrat Technologies Australia Pty Ltd). 
• A boat propeller injured an employee after they were pushed off a boat during the work EOY function.  The employer was held liable for the injury.
• WorkSafe prosecuted for breaches of occupational health and safety laws after an employee suffered severe burns at a EOY function.  The employee had their chest sprayed with paint thinner which caught fire from the flame of an ignited spray can.

The above cases demonstrate that the EOY event, even if held outside of normal working hours and outside the workplace, has sufficient connection to work and that any inappropriate or unlawful behaviour engaged in by employees at these functions is treated as occurring at work.

As such, an employee’s conduct at an EOY function may result in claims against the employer.  It should also be noted that conduct which occurs after the event has concluded may also put the employer at risk of a claim. This is why it is vital that the event finishing time is confirmed and that any after event activities are not part of the event.

If you have any questions regarding the above or need assistance in understanding your obligations for the upcoming festive season, please contact us on:
Telephone: (02) 9058 4930
Email: office@ndlaw.com.au

This article was prepared by:

Disclaimer: This publication has been provided for general guidance only and does not constitute professional legal advice. You should obtain professional legal advice before acting on information contained in this article.