Tis the Season – How to Avoid Workplace Liability at your Christmas Party

We all know that end of year Christmas celebrations can be fun, and provide an excellent opportunity to celebrate the achievements of your organisation and staff.

You’ll no doubt spend money, time and effort ensuring the celebration is a success, but make sure you also spend time ensuring the festivities are a positive end to the year for everyone involved.
All employers need to consider the potential hazards which may arise when holding an office Christmas party.

No matter if it’s getting together for casual drinks at the office, a lunch/dinner, an outing or a large function -these events are still considered to be work functions, and there are important legal obligations that you should take into consideration.

While it is well established that an employer’s obligations to protect an employees workplace rights extends outside of work hours; this liability even extends away from the physical premises of your organisation. Yet, it seems that year after year employers are still being faced with the aftermath of the festive season, when Christmas party shenanigans can go horribly wrong. Remember the external function or event need only to be linked with the workplace, for your obligations and liabilities to continue.

Employers can be held liable for injuries suffered by employees travelling to or from a work function, as well as any injury arising from the behaviour of employees during celebrations. “Injuries” can include; suffering from harassment or intimidation, unwanted sexual advances or being subjected to offensive language. All employees attending the party should be made aware of their responsibilities and what is considered appropriate behaviour.

What Employees Should Know

  • Consider holding a staff meeting, emailing all of your employees or posting a bulletin, reminding them what is expected of them at your function this year. You may wish to advise your staff of the following;
  • A Christmas party is still considered a work activity, and as such, normal disciplinary procedures will apply in the event of any harassment
  • If a function is held after hours, or off your organisations physical work premises, the usual standards of behaviour expected during working hours will still apply.
  • NB: Remember to advise staff that this conduct also extends to any conduct which may take place after the function ie. posting pictures and/or comments on social media sites such as Facebook or Twitter
  • Your organisations policies relating drug and alcohol use, bullying, discrimination, sexual harassment, and any other forms misconduct, will still apply to all staff attending the function
  • Any employee found to be in breach of these policies, will be subject to disciplinary action.

Case Law

Fraser Coast Free Range Pty Ltd and Q –Comp (3 July 2009)

In this case, the Queensland Industrial Relations Commission (IRC) found the employer liable for the worker’s injury which was sustained at a work Christmas party.

An intoxicated worker was injured in a fight at a work Christmas party. The Christmas party was held on the employer’s premises in 2007 and was attended by the director, the worker and approximately 20 other employees and partners.

At the party, a barbeque was provided, together with alcoholic beverages. An altercation broke out between several guests and the worker intervened and was struck in the back. She fell to the ground and sustained a fractured collar bone and an injury to her right eye.

The worker made a claim in her employer for compensation, which was declined. The worker sought a review and Q-Comp accepted her claim. The employer appealed the decision and the matter was heard in the Queensland IRC.

The company director conceded that the worker’s injury occurred in the course of employment however, he argued that her injury was not compensable as she intervened in the fight when he told her not to. The company director also argued that the worker had been drinking heavily, was unsteady on her feet and was “out of control.” He argued that the injury was a “…product of her own actions.”

Commissioner Fisher of the IRC found that the worker had not taken herself outside of the employment relationship by consuming alcohol. Commissioner Fisher found that“alcohol was freely and amply supplied by her employer and nothing was done by [the director] to curb [her] consumption.”

The Commissioner questioned the company director’s recollection of events after hearing that he had consumed four mid-strength beers and eight glasses of vodka. He also accepted the worker had also been impaired by alcohol, but found that the guest involved in the initial altercation was the more likely aggressor in the incident that caused her injuries.

Tips to Ensure Safe Celebrations

Your duty of care under Workers Compensation and Occupational Health and Safety Laws, cover employees at your Christmas functions, making their way home safely.
Give some consideration to the type of function you are holding, and set the tone for the celebration. You may wish to consider;

• If alcohol will be served, ensure it is served responsibly, and that there will be plenty of food and non-alcoholic beverages available.
• Consider if you need to make arrangements to ensure employees can travel safely home. Is there safe public transport available? Do you need to provide a vehicle, book taxis or provide cab-charge vouchers?
• Start and finish times should also be clearly set out, including that, if staff choose to move onto another venue, after your organisations party has ended, the new venue is not part of the work sanctioned Christmas party.
• Remind staff that Kris Kringle/Secret Santa gifts should not be offensive or sexual in nature.
• Suggest a dress code for the party that keeps things professional.

Managing Misconduct Arising from Christmas Parties

If employees do not meet the standards of conduct expected of them, you should ensure that disciplinary action is taken in following days. Do not wait until the New Year to engage formal procedures, unless it is absolutely necessary. Remember, all allegations must be properly investigated before taking serious disciplinary action.

You don’t have to become the Grinch that Stole Christmas, but by putting in place some of these practices and safeguards, will help ensure everyone at your organisation has a Merry Christmas and Happy New Year.

Oh, and a word from the wise … don’t hang mistletoe in the office or at your party – you’re only asking for trouble! Remember, it’s called “the silly season” for a reason.

If you are concerned about certain aspects of your Christmas function planning, please contact one of INVision’s Directors via our website at www.inv.com.au

Sarah Ralph, Partner Norton Rose, ‘Don’t be the Christmas turkey. Avoiding workplace liability in the festive season’ November 2011
Michael Bracken, Partner Tresscox Lawyers “Not too jolly – Employer liability at the company Christmas function’ December 201
Kevin Dwyer, Warren, McKeon, Dickson Lawyers ‘Employer liability at work Christmas parties’

Any publications and/or resources on published on this website are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive, nor does it constitute legal advice

What is Bullying?

Could you identify a bully in your workplace? What is Bullying?

‘Workplace bullying means any behaviour that is repeated, systematic and directed towards an employee or group of employees that a reasonable person, having regard to the circumstances, would expect to victimise, humiliate, undermine or threaten and which creates a risk to health and safety.’

Repeated refers to the persistent or ongoing nature of the behaviour and can refer to a range of different types of behaviour over time.

Systematic refers to having, showing or involving a method or plan. Whether behaviour is systematic or not will depend on an analysis of the circumstances of each individual case with the general guideline in mind.

Risk to health and safety includes the risk to the emotional, mental or physical health of the person(s) in the workplace.

“Bullying” can be serious misconduct, and may, subject to the particular circumstances, be a valid reason for termination. Bullying behaviour can be obvious and aggressive.

Examples could include:

  • Abusive, insulting or offensive language;
  • Behaviour or language that frightens, humiliates, belittles or degrades;Teasing or regularly making someone the brunt of practical jokes;
  • Displaying material that is degrading or offending;
  • Spreading gossip, rumours and innuendo of a malicious nature.

NB: Violence, assault and stalking are extreme forms of bullying that constitute a criminal offence. Such behaviour should be reported directly to the police.

Workplace bullying can also be subtle and could include behaviour such as:

  • Deliberately excluding, isolating or marginalising a person from normal workplace activities;
  • Intruding on a person’s space by pestering, spying or tampering with their personal effects or work equipment;
  • Intimidating a person through inappropriate personal comments, belittling opinions or unjustified criticism. Covert behaviour that undermines, treats less favourably or disempowers others, is also bullying, for example:
  • Overloading a person with work;
  • Setting timelines that are very difficult to achieve, or constantly changing deadlines;
  • Setting tasks that are unreasonably beyond a person’s ability;
  • Ignoring or isolating a person;
  • Deliberately denying access to information, consultation or resources;
  • Unfair treatment in relation to accessing workplace entitlements, such as leave or training.

What Isn’t Bullying

  • Reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline, counsel, retrench or dismiss an employee;
  • A decision by an employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with an employee’s employment;
  • Reasonable administrative action taken in a reasonable manner by an employer in connection with an employee’s employment; or
  • Reasonable action taken in a reasonable manner under an Act affecting an employee.

Bullying as Serious Misconduct Justifying Dismissal

In 2008, the Australian Industrial Relations Commission (AIRC) considered whether bullying constituted serious misconduct to justify dismissal in the matter of Karen Sinapi v Coles Supermarkets Australia Pt y Ltd [2008] AIRC 405.

The story …..

Ms Sinapi was a Store Manager at Coles’ Campbellfield and had been employed by Coles in various roles over 24 years. Following an internal investigation, Coles terminated Ms Sinapi’s employment for serious misconduct. Ms Sinapi sought compensation in the AIRC, alleging the termination of her employment was harsh, unjust or unreasonable. Coles argued that Ms Sinapi’s behaviour on several occasions justified dismissal including that she had:

o Used offensive language to a sales representative;
o Adopted a demeaning and belittling attitude towards another employee (Ms Thompson) including, grabbing her ponytail and pulling her towards a store display; and
o Engaged in “flirtatious and inappropriate behaviour” with a subordinate employee on
a number of occasions which was observed by other employees and captured on security video footage.

Ms Sinapi admitted using offensive language but said that she had spoken in an “amiable and jocular manner”. She admitted pulling her colleague’s hair, but claimed that it was “gentle” in nature and that there was “a prevailing mood of jocularity”. Ms Sinapi claimed her behaviour towards the subordinate employee had been consolatory in nature.

The result ……

In rejecting Ms Sinapi’s application, the AIRC commented that any one of the incidents would be sufficient to justify termination of employment, and together, constituted a valid reason for termination. Given Ms Sinapi’s position as Store Manager, the AIRC held that it was reasonable to expect that she would be an exemplar of the behaviour expected of employees. Further, Coles was under an obligation to act where behaviour of an employee breached normal standards of professional courtesy and etiquette and had the potential to damage its reputation, both in the market place and in the community.

Why bullying goes unreported

There are many reasons why workers may not report bullying or cooperate in inquiries. These include:
lack of response by employer;

  • lack of knowledge about bullying behaviours and their effects;
  • uncertainty about the correct procedure or where to seek help;
  • fear of retribution from the bully or bullies;
  • feelings of intimidation or embarrassment;
  • belief that the behaviour is part of the workplace culture;
  • feeling that nothing will change; or
  • feeling that their opportunities for promotion in the organisation or the industry will be affected.
  • Some workers may not be aware that the organisation they work for has established bullying prevention and management procedures and that their reports will be dealt with in a proper manner.

How to prevent bullying

Although primarily a psychological issue, workplace bullying should be managed like any other occupational health and safety hazard. That is, once identified the degree of risk should be assessed and the risk controlled and reviewed to ensure that workplace bullying does not become, or continue to be, a problem within the workplace.

Consider the following:

1) Consult with workers and safety and health representatives

Employers should establish whether bullying exists in their workplaces or whether there is the potential for bullying to occur. Employers may seek the cooperation of workers to identify bullying behaviour. Bullying is more likely to be reported and cooperation achieved if managers, supervisors and other workers have been involved in the process from the beginning.

2) Develop a prevention policy

A bullying prevention policy, developed by employers in consultation with workers and safety and health representatives, should aim to eliminate existing workplace bullying, if any, and prevent it in the future.
The policy should include a bullying prevention policy, directed at promoting principles of decency and mutual respect and combating discrimination in the workplace. The policy can be developed on its own, or may be included in an occupational safety and health policy or code of conduct.

Workers should be aware of policies and the need to follow them in performing their jobs. Preventative measures may involve an organisation-wide response as well as addressing symptoms in a specific area.

3) Provide information and training

Employers should make information on workplace bullying available to all workers, supervisors and managers. If necessary, the information should be provided in languages other than English.
Information on the bullying prevention and management policy should be widely promoted in the organisation through information sessions, staff meetings, newsletters, etc. The policy should be included in the induction package for all new workers.

Workers should also be provided with information on points of contact within the organisation, such as contact officers or grievance officers.

4) Monitor the effectiveness of action taken

The bullying prevention plan should be regularly evaluated to ensure that it remains appropriate and it prevents bullying at the workplace.

Responding to Incidents

Informal resolution process

An informal resolution process aims to ensure that the bullying incident is resolved as quickly as possible. Although an employee has the right to make either a formal or an informal complaint, they should be encouraged to commence with the informal process first, as this can usually achieve a more timely and satisfactory resolution for both parties.
If the informal resolution process fails to provide an agreed outcome then the employee should be told that they could pursue a formal complaint leading to investigation.

Formal investigation process

It is important that employees clearly understand what to expect from making a formal complaint. You may wish to inform employees that:

  • The investigation procedures will adhere to natural justice principles and ensure fairness for all concerned;
  • An investigation will occur as soon as possible after the complaint is received;
  • An impartial person who can carry out the investigation without hindrance will conduct the investigation.

What are your obligations?

Occupational Health, Safety and Welfare

Due to the effect on the safety and health of employees and others at the workplace, bullying is unlawful under the Occupational Safety and Health Act 1984 (WA).

Equal Opportunity

Equal Opportunity Act 1984 (WA) Bullying behaviour can involve elements of discrimination. The types of discrimination covered by West Australian law include disability, race, sex, age, sexuality, pregnancy and marital status. Employees being bullied on any of these grounds can make complaints to the Equal Opportunity Commission, who will attempt to resolve the complaint privately by conciliation. If settlement cannot be reached, cases can be referred to the Equal Opportunity Tribunal for a public hearing and decision.

Worker’s Compensation

Although the Workers Compensation and Injury Management Act 1981 (WA) does not mention bullying specifically, psychiatric disabilities caused by bullying at work, are compensable, if and only if, the employment was a substantial cause of the disability. An employee may make a claim for compensation regarding any compensable injury that arises out of, or in the course of their employment.

Industrial Relations

There is no specific provision in the Industrial Relations Act 1979 (WA) that deals with workplace bullying, however, where an employee is dismissed or forced to resign as a result of workplace bullying, the worker may be entitled to make a claim under the unfair dismissal provisions of that Act.
Where it can be demonstrated that an industrial dispute exists between an employer and employee and all of the necessary requirements of the Act have been met, a notice of industrial dispute can be lodged with the Industrial Relations Commission of Western Australia to seek its assistance to resolve the dispute.

Criminal Law

Workplace bullying may also amount to criminal behaviour in breach of the Criminal Code Act 1913 (WA) various criminal legislation. Examples include assault and unlawful threats.

Department of Commerce WA – Code of Practice Violence Aggression and Bullying at Work 2006.
Preventing Bullying in the Workplace – A Practical Guide for Employers, Equal Opportunity Commission of South Australia.
Heidi Fairhall, Lawyer, Blake Dawson, Sydney (case law)

Recording Private Conversations in the Workplace

What happens if an employee secretly records a discussion he or she is having with you during a performance management meeting?

What if they are also recording conversations of other employees without their knowledge or consent?

Is the employee allowed to use their smart phone, BlackBerry, iPod or any other small recording device to secretly record a discussion about work performance?

In this brave new technological world, smart phones and other pocket-sized recording devices have given both employees and employers powerful tools to easily record playbacks of sensitive workplace conversations; sometimes, with the intent to take legal action or subject the parties or the organisation involved to public criticisim.

There is a growing amount of litigation in this area, so let’s take a brief look at what the law says.

The Law

Unfortunately, the laws in this area are complicated, and legislation varies throughout the States and Territories. However, all State and Federal legislation restricts the recording and publication of private conversations and telephone conversations, without the consent of the parties.

In Western Australia, the Surveillance Devices Act 1998 (Act) regulates the use of listening devices, optical surveillance devices and tracking devices. The Act may apply to workplaces where surveillance devices such as security cameras, closed circuit TV, telephone monitoring and GPS systems are being used.

It is generally an offence to use, install or maintain:

• listening devices to record or listen to a private conversation;
• optical surveillance devices to record visually or observe a private activity; or
• tracking devices to determine the geographical location of a person.

The Act defines a private activity as;

“any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed”.

Therefore, recording a private conversation in the workplace could be considered an offence, for example; where disciplinary action is being discussed between an employer and employee, and it is being recorded without the consent of the parties involved. The parties ought reasonably to expect that the conversation would not be recorded or listened to by a third party.

A listening device is defined as;

“any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear”
Therefore, smart phones, smart pens, Blackberry’s, iPods, iPhones etc are all classified as listening devices.

A private conversation means;

“any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.”

Therefore, if for example the performance management discussion is taking place in an office with the door open, or in an open plan environment, then it won’t be consdiered to be a private conversation.
However, there is case law which indicates this does not apply if the person recording the conversation believes that the recording is ‘reasonably necessary’ for the protection of his or her lawful interests. This question is determined objectively (ie. not what the person recording thinks, but what is reasonable in the circumstances).

Simply put, the laws in this area are not ‘clear cut.’

Case Law

Eduard Christian Sent v Primelife Corporation Ltd [2006] VSC 445

The employees in this case were the former CEO and deputy CEO of the employer of a company in Victoria. Following the termination of their employment, the employees brought claims against the employer alleging that the employer had breached its contractual obligations by wrongfully terminating their employment. The employer argued that the employees had engaged in conduct warranting summary dismissal (i.e. dismissal without notice).

The court held that the employees’ conduct (which included tapping the telephones of other employees, videotaping meetings, deceptions about the recordings having stopped, and cash payments to resolve industrial disputes) constituted serious misconduct warranting summary dismissal.

The court noted that “not every deliberately false statement by an executive officer to a board of directors… [will] constitute serious misconduct”. However, the employees’ conduct in this instance was deceitful and disobedient concerning matters of security and confidentiality.

If you have any questions regarding these issues in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au



Any publications and/or resources on published on this website are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice.

Managing Workplace Conflict

When people work together in groups, there are bound to be occasions when individuals have different points of view. This can lead to disagreements which may develop into conflicts in the workplace. Whether these disagreements become full-blown feuds or instead, fuel creative problem solving, is in a large part, up to the person in charge.

Organisation leaders are responsible for creating a work environment that enables people to develop and thrive. You can do a lot to ensure that your employees deal with disagreements in proactive, productive ways, by knowing when and how to intervene — and when to let things be.

If workplace conflicts escalate – you must intervene immediately. In a climate where employees are becoming more and more litigious, doing nothing is not an option.

This blog will identify strategies for you to manage workplace conflict, before it gets out of control.

Identify the signs and causes of conflict

What are the signs of conflict?

Pay attention. The sooner you see the signs, the sooner you can intervene, resolve the conflict, identify the underlying causes, and reach a sustainable agreement.

Obviously, some signs of conflict will be more visible than others. For example, you might; witness a heated exchange between colleagues. Conversely you may note some of the following more subtle symptoms; motivation drops and productivity falls, where fewer people volunteer to take on new tasks, and there is little employee input at team meetings or briefings; behaviour changes, where people may start to make derogatory remarks towards each other, and there are fewer social events organised; the level internal and external complaints increase; and absenteeism increases.

Although some managers will find it easier than others to pick up signs of conflict, you are more likely to be able to interpret the behaviour of your employees, if you have regular channels for open communication and consultation. By listening to the views of your employees at an early stage – before issues become potential problems – you can gauge future reaction to proposed changes.

Identify who and/or what is causing conflict?

Ascertain whether the conflict is between; individuals, teams or groups; managers, or between large groups of employees and management. Conflict can stem from a wide range of causes. Some of these may relate to:

  • health and safety issues;feelings of unfair or discriminatory treatment;
    perceived workplace bullying and harassment;
  • poor communication;
  • lack of equitable employment al opportunities;
  • skill deficiencies and inadequate training opportunities;
  • perception of poor management decisions; and
  • discontent over rates of pay and conditions.

However, sometimes, the real causes of conflict can be an underlying or long standing issue, and may relate to;

  • A long standing rivalry or a clash of personalities between employees;
  • A disagreement or differences of opinion over a work related matter (eg) a project or work assignment
  • Resentment towards an individual or the organisation;
  • A ‘spill over’ from personal issues outside work; and
  • Unresolved problems from the past.

Important! Conflict between work colleagues can often lead to accusations of bullying or harassment. Good managers should always be ready to talk. Try to create a climate of open and positive dialogue. If an employee feels able to approach you at an early stage, then problems can often be nipped in the bud before they become formal grievances.

Managing conflict between individuals

Have an informal discussion with the parties involved.
This stage simply involves discussing, talking, and listening to employees. Giving people the time and space to express their feelings and concerns, can often help to clear the air. It is important employees know who they can go to if they have a problem at work, and that their concerns are taken seriously.
However, it is also recommended you keep a record of when these meetings take place, who attended, what the result was etc. These records may be helpful later on, if the matter escalates to a formal grievance or potential workplace investigation. This will at least indicate what initial steps were taken in order to resolve the matter.

During these discussions, managers should encourage individuals to express their opinions and views, clearly identify the problem, identify their needs, and any potential resolution to the problem. You should attempt to:

Allow every person involved to clarify his or her perspectives and opinions about the problem. Make sure everyone has an opportunity to express an opinion. It is your responsibility to make sure all participants feel safe and supported.

Identify the ideal end result, from each party’s point of view. It might surprise everyone to discover that their visions are not so far apart after all.

Identify what can realistically be done to achieve each individual’s goals. If action is taken, how will this affect other projects and objectives? Will the end result be worth the time and energy spent? If the attempt fails, what’s the worst that can happen?

Find an area of compromise. Is there some part of the issue on which everyone agrees? If not, try to identify long-term goals that mean something to everyone, and start from there.

Having these conversations with employees is not easy, and requires a great deal of sensitivity and empathy. You need to:

  • listen to what employees say, and
  • try and pick up on any underlying causes of unhappiness or stress.
  • question employees in a measured and calm way, putting them at ease, and giving them the chance to speak freely.
  • reframe what’s been said, so that problems can be seen in a different light
  • lead by example, and set the right tone for the way people communicate with each other.

Feel a little out of your depth? That’s okay, but consider getting the help of a professional trained consultant, and engage in training to assist you in building your own skills. There is a wide range of highly trained consultants that specialise in mediation, conciliation, and/or other dispute-resolution processes.

Managers who successfully manage conflicts in their organisations, will generally experience lower rates of complaints than managers who fail to do so. Informal resolution of complaints, significantly reduces the potential for further conflict, time lost in dealing with issues and further administrative processing and related costs.

Important! While employees should be encouraged to try and attempt to resolve matters informally, employees should also be reminded, that it is the responsibility of all staff to behave in a responsible and professional manner in the work place at all times, and treat others with respect and dignity.

Prevention Strategies

  • Bring issues out in the open before they become problems.
  • Be aware of triggers, and respond to them when you first notice them.
  • Have a process for resolving conflicts — bring up the subject at a meeting, and get agreement on what people should do in cases of differing viewpoints.
  • Make sure everyone understands the organisation’s goals and expectations, including what’s expected of each individual. Be as clear as you can about job descriptions, and areas of responsibility.
  • Provide appropriate training opportunities for all employees. Provide training and coaching in conflict-resolution skills, and expect people to use them.
  • Recognise and praise accomplishment. If employees feel valued and appreciated for the work they do, they are less likely to jockey for position and become involved in disruptive behaviours.
  • Discourage gossip, and don’t put people in the position of spying or reporting on each other.
  • Create consistent performance review procedures that apply to everyone equally.
  • Make sure expectations are realistic and consistent with job descriptions.

If you have any questions regarding your conflict resolution in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au