End of Year Functions: Managing Risks This Silly Season

As the festive season approaches, many workplaces are preparing for annual celebrations. While these events build culture, they also create legal and safety risks. The Fair Work Commission’s decision in Keenan v Leighton Boral Amey NSW Py Ltd [2015] FWC 3156 (‘Kennan’) is a timely reminder that employers must take active steps to manage conduct at work related functions.

The Keenan Decision: Key Lessons

In Keenan, an employee engaged in a range of inappropriate behaviours at a Christmas function, including intoxication, offensive remarks and several instances of unwelcome physical contact. Despite the seriousness of the behaviour, the Commission found the dismissal to be unjust and disproportionate.

This occurred because the employer:

·       Did not take proactive steps to discharge its positive duty at the event

·       Allowed free and unlimited alcohol without RSA controls

·       Provided insufficient supervision during the function

·       Circulated a joking memo beforehand that undermined behavioural expectations

The decision shows that good policies are not enough unless the employer ensures a safe, well managed event environment.

When Out-of-Hours Conduct Becomes Work-Related

Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross, VP, 4 December 1998) provides the principles for when out-of-hours conduct can be treated as a workplace issue. Employer action may be justified where the conduct of an employee outside of work hours involves the following:

1.      Seriously damages the employment relationship

2.      Damages the employers interest

3.      Is incompatible with the employee’s duties

Work Christmas parties and similar events can easily fall under these principles when there is a clear connection to employment.

Practical Tips for Employers This Silly Season

Thee following steps will help manage risk and promote a safe and positive event.

1.      Update and Re-Communicate Workplace Policies

Encourage employees to revisit

·       Behaviour and conduct expectations

·       Harassment, bullying and discrimination provisions

·       Complaint and grievance pathways

2.      Issue a Clear Pre-Event Memorandum

Your memo should:

·       Confirm the event is a work function and that policies apply

·       Attach the relevant policies that apply

·       Set out acceptable and unacceptable coduct

·       Outline possible consequences for policy breaches

·       Explain how to report concerns or seek support

The tone should be professional and clear

3.      Fulfil Your Positive Duty to Provide a Safe Environment

Make sure your policies and culture reflect:

·       Lear behavioural standards

·       Consequences for breaching those standards

·       Support channels such as HR contacts and Support services

4.      Assign Sober Supervisors

Nominate managers or HR representatives who can:

·       Stay sober

·       Monitor conduct

·       Intervene early

·       Ensue general safety

They should have authority to act if required

5.      Manage Alcohol Responsibly

To minimise risk:

·       Provide substantial food

·       Ensure RSA compliance

·       Offer non-alcoholic options

The employer providing the unlimited alcohol was a key issue of concern in Keenan, making this step essential. Therefore, adequate restrictions should be put in place, particularly relating to the bar/tab.

Third Party and Venue Responsibilities

Employers can still be liable for issues involving:

·       Family members or partners attending

·       Public or licensed venues

Therefore, ensure your venue hire agreement addresses RSA practices and security expectations.

If Issues Do Arise: Steps for a Lawful Response

1.      Follow your grievance procedure

2.      Conduct a fair and thorough investigation, including giving the respondent an opportunity to respond

3.      Determine a proportionate outcome, considering seriousness, context and consistency

Summary: Key Points

1.      Employers have a positive duty to ensure Christmas parties and work functions are safe and well-managed.

2.      Inadequate supervision and unrestricted alcohol service were major factors in the Keenan decision.

3.      Policies and expectations must be clearly communicated before the event and applied consistently.

4.      Responsible service of alcohol, substantial food and non-alcoholic options reduce risk significantly.

5.      Nominating sober supervisors helps monitor behaviour and addresses issues early.

6.      Employers may be liable for misconduct involving family members at public venues.

7.      If an incident occurs, follow your grievance procedure and conduct a fair, thorough investigation.

If you need help preparing or reviewing policies, drafting pre-event grievance guidance, investigating complaints or managing any workplace issue arising from the festive season, Jenkins Legal & Advisory is here to help. Feel free to contact our team for practical and timely advice.

This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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