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

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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

References:
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’
http://workplacelaw.comau/cms/content/view/169/36/

Disclaimer:
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

7 Deadly Sins Committed by Employers – Workplace Investigations

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7 Deadly Sins Committed by Employers – Workplace Investigations

Employers commonly make a number of mistakes when dealing with issues of employee complaints, grievances or allegations of misconduct. However, there are ways to reduce the potential of costly lawsuits, industrial action and an unhappy workplace.

Employment lawyers are often asked to advise on workplace issues or disputes after the “horse has bolted”. Unknowingly, employers can have potential time bombs that explode into costly litigation. It’s difficult, if not impossible, to unravel or manage the paper trail of damaging admissions and dealings with employees and unions.

So how can you avoid making similar mistakes? Here are 7 mistakes employers often make and how to avoid them.

1. Failing to discipline employees and document poor performance in the first place:

In unfair dismissal claims, it’s common to find that the employer’s records don’t always demonstrate that there was a valid reason or a fair process for the dismissal. A common response to questions is; “oh, yes, I had a chat to them about that.” The problem with this approach is that, down the track, when the employee keeps on engaging in misconduct or when the employer can no longer tolerate the unsatisfactory performance, the employee’s personal file fails to show properly recorded documentation detailing the problems.

As a result, it is much more difficult for the employer to demonstrate that there were grounds to justify the termination or other disciplinary action. Vague recollections of chats at unspecified dates, are not very persuasive for courts and tribunals.

2. The “shotgun” or “knee-jerk” approach:

One of the biggest mistakes employers make is being reactive and not strategic about actual and potential workplace issues. An aggrieved employee will often take a “shotgun” approach in relation to a complaint or grievance by, for example; lodging a workers’ compensation claim, engaging their union, stating their intention to lodge an unfair dismissal claim or law suit.

These situations can often be overwhelming for employers, but it is important that employers do not have a “knee jerk” response, and jump straight into an investigation or legal action, without first following the appropriate procedures. Seek advice and address potential problems early and quickly.

Plan for this by having a grievance /complaint management procedure in place, so you can deal with issues as they arise.

3. Not having appropriate policies or procedures in place:

Following allegations of discrimination or harassment, policies are often found to be inadequate, employees have had no recent training (or no training at all), and managers and supervisors have let problems get out of hand. Implementing effective policies and procedures for dealing with such issues is vital.

Employers should ensure that their policies and procedures are comprehensive and up-to-date. It’s also essential to regularly train managers and employees on these policies and procedures. For example; an effective Grievance Resolution Procedure, should be a staple in every workplace.

It is recommended that grievances are managed via the following process.

Step 1: Informal Discussion;
Step 2: Raise Informal Grievance;
Step 3: Lodge Formal Grievance;
Step 4: Conciliation and Mediation;
Step 5: Investigation. (However, this should not be initiated until steps 1-4 have been attempted and documented.)

4. Failing to properly investigate employee grievances/complaints:

Managers and supervisors take shortcuts in investigations far too often. Typical mistakes when investigating a formal grievance may include;

  • Failing to understand and apply the principles of natural justice and procedural fairness;
  • Failing to plan an investigation methodically, or at all;
  • Not following a grievance management procedure; and
  • Failing to engage a suitably qualified Investigator.

5. Not managing staff effectively during an investigation:

Employers need to be aware of potential stress that may be suffered for those involved in an investigation, and have mechanisms in place to deal with it should it arise. Such as, access to Employee Assistance Programmes, counsellors or grievance officers. Staff morale is crucial and it is important to communicate with staff and be open with them about the investigation, without breaching confidentiality.

It often helps for the manager to give staff a brief explanation of what may be occurring in their work area to avoid the ‘rumour mill’ and avoid the workplace becoming toxic. When an investigation is completed, it is important to conduct a debriefing session, especially if the investigation involves misconduct. Remember, managers and supervisors need to ‘walk the talk’.

6. Not implementing recommendations:

An essential phase of any investigation is the implementation of change stemming from the recommendations in a report. It is a common re-occurrence that many employers fail to implement recommendations. The results of any major report or enquiry, should serve to generate improvements to the workplace and implement strategies to manage future complaints/issues.

7. Viewing an investigation negatively:

Employers should not look at a workplace investigation as an inconvenience or major problem. Treat an investigation as an opportunity to effect change if something is not working or, to strengthen existing processes, policies, procedures and overall functionality of your workplace. After all, a workplace investigation is just another managerial tool.

Avoid the Stress

Workplace investigations can be a stressful undertaking for all those involved. Get it right and systemic and endemic problems may be addressed. Get it wrong and you run the risk of creating a toxic dysfunctional workplace, so let INVision help!

INVision’s licensed Investigators have successfully conducted over 1000 workplace investigations, and offer over 45 years combined experience in working for various state and local government agencies, and private companies throughout Australia.

As such, we have a broad knowledge base, a comprehensive understanding and working knowledge of contemporary investigative techniques and relevant legislation.

If you have any questions regarding your workplace investigations, please contact one of INVision’s Directors via our website at www.inv.com.au
References:
http://www.humanresourcesmagazine.com.au/articles/d2/0c01d8d2.asp, authors Craig Taylor, Julia Sutherland and Marie-Claire Foley
http://www.wiseinvestigations.com.au, author Jo Kamira

Age Discrimination in the Workplace

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Age Discrimination in the Workplace – Too old to work?

Ageism is essentially bias against a person or group on the grounds of age. An ageing society means that greater numbers of older people may want, or need to remain in the workforce for longer periods. However, older people often encounter barriers to full participation in society. This is most marked with respect to employment.

In the workplace, we need age diversity to profit from the invaluable contributions that each age group can offer. Ageism is present in every stage of employment, from recruitment and selection to terminations.

It seems that ageism permeates our culture and society. It is exacerbated by negative connotations in our language, literature and media. Myths and stereotypes about older people in the workplace continue to present a barrier for older workers in obtaining and retaining employment. Some stereotypes tend to present older workers as being; “unadaptable to change”, “set in their ways”, “technologically illiterate”, “dependent” or “irrelevant.”

Despite an increase in mature age workers in the workforce over the last two decades, the biggest hurdle that these individuals face continues to be discrimination, with some essentially coerced out of the workforce. If older workers are perceived as less productive and are forced to retire, the idea that older workers are not productive, is reinforced and further perpetuates discrimination.

What are the Statistics?

According to a 2004 survey conducted by the Australian Bureau of Statistics ‘Mature Age Person Statistical Profile’, out of 1500 people surveyed aged between 45 and 74, 67% had concerns about the prospect of re-entering the workforce or advancing in their current jobs. In 2004, close to one-third (32%) of people participating in the labour force were aged 45-64 years, up from 24% in 1983. This increase not only reflects larger numbers of people entering this age group as the baby boomers age, but also changes in labour force participation over the period.

Another 2004 survey conducted by Hudson Global Resources and Human Capital Solutions, also found that less than one-third of organisations proactively seek to attract and retain mature age workers.

What are the Age Discrimination Laws?

All States and Territories have legislation in place, which, at least in theory, protects people from discrimination on the grounds of age. In 2004, the Federal Government passed the Age Discrimination Act. The act seeks to protect the interests of both younger and older Australians, and covers areas such as; employment, education, provision of goods and services and facilities and accommodation etc.

In Western Australia, the Equal Opportunity Act 1984 (WA) covers grounds of unlawful discrimination such as; sex, sexual orientation, marital status, pregnancy, race, religious or political conviction, age, racial harassment, impairment, family responsibility or family status, gender history.

Case Law

Even though potential employers cannot advertise age preferences for jobs, some advertisements still provide numerous clear messages about the preferred age range, through the use of age specific descriptors, such as ‘a young, exciting environment’ etc. While such language or criteria can be used legitimately for employers to find a suitable employee, they can also hide ageist biases.

For example, in Hopper & Others v Virgin Blue Airlines Pty Ltd [2005] QADT 28, the Queensland Tribunal found that Virgin Blue had discriminated against eight female complainants, who had applied for the positions of “cabin crew member”, because they were over the age of 35. While the criteria of ‘Virgin Flair’ did not contravene anti-discrimination laws per se, the assessors’ application of their preference for younger people, was more in line with the concept of ‘Virgin Flair’, described as – ‘a desire to create a memorable, positive experience for customers: the
ability to have fun, making it fun for the customer.’

In Gilshenan v P.D. Mulligan (Newcastle) Pty Ltd (1995) EOC 92-781 a 64-year-old butcher was transferred from the butcher’s shop to a sausage-making factory. He alleged that the transfer was intended to induce him to retire; the respondent however claimed that he was too slow at his job and was not fulfilling the inherent requirements of the position. The Tribunal found that he was competent at his previous position, and ruled that the respondent had discriminated against him on the basis of his age.

Similarly in Goodworth v Marsdens Motors Pty Ltd (No 1) [1996] NSWEOT; EOC 92-837. Ms Goodworth was forced to retire after six years of employment with the respondent. The company claimed she was inefficient, incompetent and the office was overstaffed. The Managing-Director however purportedly told a trainee that Ms Goodworth was ‘older and her health is not good. We want someone younger. You can do the same job that she did.’

Skinner v Lightning Bolt Pty Ltd [2001] EOC 93-167. The complainants, aged 58 and 57 were laid off after three months of employment. The respondents claimed there was not enough work for them due to a down turn in trade, as a large client had gone into liquidation. When one of the complainants returned to the respondent to get a reference, he noticed two younger men aged 36 and 21 doing the jobs of the two complainants. The Tribunal found that there was no shortage of work for the complainants, and that they were in fact discriminated against because of their age.

Solutions to Ageism in the Workplace

While a well implemented ageing strategy will improve morale, teamwork, cooperation and productivity across all levels of the organisation, workplace policies must be framed carefully. Ageism is just one of the many challenges organisations must address in order to embrace one of the only remaining segments of the workforce in which participation can be increased.

The following HR practices are important;

1. Introduce measures to combat ageism such as education and awareness programs;
2. Restructure work practices to accommodate emerging population trends;
3. Train staff to enhance the organisational skill set; and
4. Train managers in age management strategies and age discrimination.

Just as organisations put in place strategies and policies to address issues such as workplace bullying or harassment, employers must consider the same in order to prevent age discrimination from gaining a foothold in their workplace.

Tailoring policies and practices for age diversity is an important emphasis in the management of staff, and can be a demonstration of management and organisational flexibility. Organisations that discriminate on the basis of age, are limiting their chances of recruiting and retaining the best people.

As people live longer, engage in lifelong learning and pursue intellectual and skill growth throughout life, diversity in the workplace will become more common. In their quest to open doors to employment, development and opportunities for all working people, human resources specialists should not be constrained by age issues.

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

References:

http://www.smartmanager.com.au/web/au/smartmanager/en/pages/111_age.html
http://www.austlii.edu.au/au/journals/QUTLJJ/2007/6.html
http://au.hudson.com/documents/emp_au_18_august_2004.pdf
http://au.hudson.com/documents/emp_au_Whitepaper_ageism.pdf
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Workplace Investigations – The Employee and the Employer

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The workplace is becoming an increasingly challenging environment for both staff and management alike, with grievances and the reporting of allegations of inappropriate behaviour on the rise. Coupled with the rise in regulatory requirements, there are expectations for greater levels of responsiveness, accountability and transparency. Increasingly, organisations are recognising the need to respond to these situations in a timely and appropriate manner.

However, a very important element in the employment relationship, is the trust an employee has in the employer that he or she will not be treated unfairly, and on the part of the employer, that the employee with not act unfairly in a manner detrimental to the employer.

Why Would I Need to Conduct a Workplace Investigation?

Often these issues can pose significant risks to an organisation. It is important, that unless workplace issues are dealt with quickly and effectively, the effect upon the organisation can be costly in terms of loss of valuable personnel, time, money and productivity, and may adversely affect an organisation’s good reputation.

Who Should Conduct the Investigation?

A common response in the past was to have the complaint or issue investigated by a Supervisor, Manager or a HR consultant, using an informal approach to resolve the situation. The experience of many is that once inquiries are commenced, and the lid is lifted from the proverbial ‘can of worms’, matters become much more complex than the initial information may have indicated.

Do They Have the Right Skills and Experience?

The organisation needs to satisfy itself that the person asked to carry out the task, has the necessary skills and knowledge to be able to conduct the investigation, in accordance with the principles of Natural Justice and Procedural Fairness.

It is essential that issues such as potential conflicts of interest are identified. A perception of bias on the part of the Investigator held by the complainant, respondent, witness or observer can undermine and taint the entire investigation and any outcomes.

Although not every workplace inquiry needs to be conducted as a full and formal investigation, where a full investigation is required, then it is paramount that the person conducting the investigation is seen to all those involved and observers as being unbiased and skilled to undertake the task. The perception that an investigation is being conducted fairly is just as important as the reality that it is being done so.

What are the Benefits of Appointing an External, Independent Investigator?

The investigation may identify systemic problems within the workplace which could lead to criticism of the organisation. In many instances, an internal Investigator may find it difficult to raise issues that they feel may not be popular with their Managers or Directors.

Adverse findings may result in ill feelings against the Investigator, which may cause further difficulties if the Investigator is required to work with those involved in the investigation during the normal course of business.

It will often be the case, that in serious matters resulting in an investigation, there are distinct advantages in an independent external Investigator being appointed. An independent Investigator will only be influenced by the evidence, they are removed from the organisational culture and politics, and the findings will be based on facts, enabling the organisation to make appropriate decisions.

Do You Have Policy Governing the Conduct of Investigations?

As an employer, you can prevent unnecessary disputes and stress in the workplace, by ensuring that your organisation has clear and transparent policies, and procedures in place governing the conduct of an investigation. The policies should apply equally to investigations conducted by another employee, or an independent Investigator.

Case Law – The Importance of Conducting a Proper Workplace Investigation

The case of Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784, relates to company policies, and also highlights important lessons in investigating workplace grievances, and in particular, the requirement to resolve factual disputes, make clear findings and the importance of a formal framework.

The Facts:

Mr Nikolich worked as a client financial adviser for Goldman Sachs JB Were. In Canberra, advisers service a portfolio of clients, the success of which impacts on their remuneration. Mr Nikolich formed a team of advisers to improve the level of customer service.

When one of the team members left, Mr Nikolich understood that the departing employee’s clients would continue to be serviced by the remaining team members. However, Mr Nikolich’s manager, Mr Sutherland, reallocated the clients largely outside the team. Mr Nikolich lodged a formal complaint about the reallocation and alleged victimisation and intimidation by Mr Sutherland following the reallocation.

The grievance was handled by an HR manager based in Sydney. She immediately contacted Mr Nikolich and arranged a telephone conference. Mr Nikolich was unsure what outcomes he sought, although he wanted something done and did not want his position jeopardised.

The HR manager checked the reallocation with senior management, who said it was appropriate for the branch manager to allocate clients. However, Mr Sutherland handled the reallocation poorly and morale was suffering as a result. Around August 2003, the HR manager sought a response from Mr Sutherland, who denied most allegations. Mr Nikolich subsequently raised a new complaint about Mr Sutherland allegedly transferring one of Mr Nikolich’s clients to himself.

In December 2003, the HR manager provided written outcomes of the investigation. She acknowledged a lack of transparency. However, she determined that: management’s decision to reallocate the clients was “appropriate”; there was no attempt by Mr Sutherland to intimidate or cause stress to Mr Nikolich; and Mr Sutherland had stepped down from his management role.

The Result

Mr Nikolich suffered a depressive condition, which led to the termination of his employment. He brought a claim for breach of contract in the Federal Court.

The Federal Court found that the handling of Mr Nikolich’s complaint was “extremely inept” because there was no recognition of the seriousness of the complaint (an alleged abuse of power), the HR manager should have travelled to Canberra to conduct interviews (if necessary, a venue should have been hired for interviews to ensure confidentiality) and no effort was made to resolve the factual conflict between Mr Nikolich and Mr Sutherland. In particular, key witnesses were not interviewed.

The Cost

The process was found to be in breach of the company’s grievance handling procedure and the employee was awarded $515,869 in damages. The employer is currently appealing the decision.

If you are concerned about any aspect your workplace investigations, please contact one of INVision’s Directors via our website at www.inv.com.au

Employer Liability at Christmas Parties

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With the festive season fast approaching, employers are arranging their annual Christmas functions. While these celebrations provide staff, employers and clients with a great opportunity to relax and enjoy themselves in a social environment, away from the normal the constraints of work, they also have the potential to become a venue for undesirable conduct, which could lead to situations with serious legal implications.

Employers are increasingly faced with the consequences of the inappropriate conduct of their employees at employer sponsored Christmas parties. These parties can provide fertile grounds for litigation against employers who fail to take basic precautions.

Employers must be able to demonstrate they took reasonable steps to educate and inform their staff about the requirement to maintain reasonable standards of behaviour, with respect to their work colleagues, and other guests at work related functions, irrespective of whether the function is held at the work place or at another location. It is important to remind all staff that while it may be a time for celebration, it is still essential that their conduct is such, as to maintain a safe workplace. Reasonable steps mean pro-active preventative measures, as lack of awareness is not in itself a defence.

Take precautions before your work Christmas party, and take time to ensure your staff understand that there are limits on their revelry, so that you and your employees don’t end up with more than just a hangover!

What are the Risks?

Some recent examples provided by the Victorian Employers’ Chamber of Commerce and Industry of Christmas parties gone wrong include:

  • An employee ended up in hospital for two weeks, after suffering burns following Christmas party “festivities.” WorkSafe subsequently initiated successful prosecutions against four of the employees involved.
  • Another employee, in a separate incident, was injured by a propeller after being pushed off a pontoon boat at a Christmas party. The employer was subsequently found liable for the injury caused.
  • An offensive Christmas card left anonymously on an employee’s desk led to a successful claim for compensation.
  • A successful sexual harassment claim was brought following inappropriate behaviour on the dance floor at a Christmas function.

REMEMBER! Sexual harassment can constitute anything from an off-colour joke, to an ill thought out Kris Kringle gift, to dance floor hi-jinks.

When is an Employer Liable for Employees ‘Out-of-Work’ Conduct?

Where a Christmas party is funded and organised by the employer, the employer will typically be liable, unless the employer can show it took all reasonable precautions to prevent the incidents.
As well as conduct which might infringe sexual harassment or discrimination laws, employers need to be conscious of their obligations to ensure the health and safety of their employees. Another significant risk is that of physical injury, which might result in the employer being in breach of Occupational Health and Safety legislation or at common law for negligence.

Discrimination laws at both Federal and State levels, expose an employer to liability for employee conduct outside the workplace, as long as there is a “sufficient connection” to the employment or the employee’s duties.

All of the current case law demonstrates that the term, “in connection with” is given a broad interpretation.

Employer’s liability also extends to the responsible serving of alcohol, and also ensuring that staff return home safely, after having hosted a work function at which large amounts of alcohol are served.

If an employee has “behaved badly” outside work hours, what sanctions can the employer impose?
The answers to these questions are often difficult and confusing for an employer to navigate, and are best dealt with on a case-by-case basis, however, some of the recent case law below may provide some guidance.

Case Law

Does a staff Christmas Party constitute the ‘workplace’?

There are many cases where an employer has been found liable for out of work conduct of its employees.
In the recent case of Streeter v Telstra Corporation Ltd (2007) AIRC 679, “an employee was found to have been unfairly dismissed after being summarily terminated for having sex in front of other employees”, disrespecting other employees and lying during an investigation into the allegations. The Australian Industrial Relations Commission (“AIRC”) held that Ms Streeter’s conduct was not so serious as to warrant termination, and ordered that she be re-instated to a similar position in another Telstra store.

Facts

On 24 February 2007, a party was held by the employees of the Telstra Shop in Miranda as a belated Christmas party and to celebrate the promotion of the Store Manager. Telstra contributed $25 per head on the company credit card towards the dinner. The employee who organised the party, Ms Hyett, booked a hotel room for four Telstra employees for later in the evening.

After the party, three employees, including Ms Hyett, returned to the hotel room. They were joined later by Ms Carlie Streeter and two male employees. The following day, Ms Hyett complained that during the course of the evening, Ms Streeter sexually harassed her by being naked in the bath and engaging in sexual intercourse with the two male employees in the hotel room.

Telstra conducted an investigation into the complaint, and subsequently summarily dismissed Ms Streeter for serious misconduct. Ms Streeter lodged an unfair dismissal application on the basis that the alleged misconduct did not occur at a work-related function and did not amount to sexual harassment. Telstra argued that Ms Streeter’s conduct occurred in a work-related context, breached her duty of good faith and fidelity and breached Telstra’s code of conduct and workplace policies.

Decision

The AIRC considered that the central issue to be decided was whether Telstra had a valid reason for the termination of Ms Streeter’s employment. The AIRC agreed with Telstra’s assertion that it would be ‘extraordinary if an employer could be held liable for an employee’s conduct under the Sex Discrimination Act but that same conduct could not constitute a valid reason for termination of employment.’

The AIRC also confirmed that for sexual harassment to occur, there must be conduct of a sexual nature, it must be unwelcome and in relation to the person harassed. The conduct must occur in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

However, the AIRC concluded that Ms Streeter’s conduct did not constitute sexual harassment, or only did so in a ‘relatively marginal way’. Although it was sexual conduct and unwelcome, it was not ‘in relation to’ Ms Hyett. The AIRC held that it was not enough that the sexual conduct offended another person, the conduct must either be done with that person in mind or have a connection with that person. The AIRC ordered that Ms Streeter be reinstated to a nearby Telstra Shop and be paid compensation for remuneration lost as a result of her termination.

However, another example is found in Lee v Smith & Ors [2007] FMCA 59 where the Federal Magistrates Court held the Department of Defence was liable for the actions of an employee raping a fellow employee after a private function. Ms Lee was a naval officer who had previously made a compliant of sexual harassment against Mr Smith. Ms Lee, Mr Smith and others attended a dinner party at which Ms Lee was intoxicated, became unconscious and woke to find herself being sexually penetrated by Mr Smith. The court held that the rape of Ms Lee occurred “in connection with” the employment of Mr Smith. The rape “arose out of” a work situation as it was the culmination of a series of sexual harassments that took place in the workplace.

Having found that the out of work conduct had ‘sufficient nexus’ to the employment, the court then discounted the Commonwealth’s defence that it had taken “all reasonable precautions” to prevent the conduct, despite having “detailed, comprehensive and appropriate equity and diversity provisions in place”. Ms Lee was awarded $100,000 for hurt, suffering and humiliation.

Implications
Employers should ensure careful consideration is given to all the circumstances surrounding the particular conduct in determining whether disciplinary measures are justifiable.

To provide guidance, workplace policies should be clear on what constitutes unacceptable behaviour.
Employers should be aware that inappropriate behaviour by employees at Christmas functions and other work-related parties may result in the employer being vicariously liable for the behaviour.

However, whether disciplinary measures may be taken against the offending employee is complex. Before dismissing an employee, employers should ensure the conduct has a sufficient connection to the employee’s employment.

Planning Your Work Christmas Party

How can I take “reasonable” precautions to reduce the risk of such issues arising?

Some Practical Tips

In the context of the work Christmas party, employers would be well advised to take the following measures:

  • Remind all staff by memo, email or notice board about the standards of behaviour expected.
  • Ensure employees are aware that compliance with your organisations policies across the spectrum of; anti-discrimination and harassment, occupational health and safety, drugs and alcohol and codes of conduct, is required during work functions and work sponsored events.
  • Employees should be aware that if they breach these policies during a work function, they may be subject to disciplinary action including dismissal.
  • Keep consumption of alcohol to reasonable and responsible levels; ensure you are in a position to stop service if necessary and supply enough low or non-alcoholic beverages. Be prepared to “call last drinks” if necessary.
  • Make sure you provide a way for people to get home safely, whether that’s a pre-organised bus, uber, a taxi voucher or a limousine.
  • Make sure you serve plenty of food and make sure it’s served according to applicable food safety standards.
  • Make sure everyone is aware of the location of fire exits and any other precautions, particular to the venue. Ensure someone monitors hazards such as wet floors, loose electrical cables etc .

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

Sources:
Fisher, Cartwright, Berrimen, Discrimination Services -http://www.fishcart.com/newsletters/DQ_1.pdf –
McCullough Robinson -http://www.mccullough.com.au/publications/publications.aspx?p=47&itm=1975 – Employment & Industrial Relations Publication
Deacons- http://www.deacons.com.au/legal-services/workplace-relations/legal-updates. Authors: Maria Saraceni & Lucy Bochenek. Workplace Relations Legal Update.
Smart Company – http://www.smartcompany.com.au/legal/xmas-party-perils.html – Author: Peter Vitale