SAVE THE DATE - REEFWA IR CONFERENCE 2024 - 11 October 2024

Avoiding The Festive Fumbles

With December fast approaching, many businesses are ready to start planning their end-of-year celebrations. While most look forward to the celebrations, these functions are still 
considered work-related events. What this means is that despite all the tinsel and tapas, you are still obligated to ensure your staff and those within the vicinity are safe.

Given the recent updates to Workplace Health and Safety legislation, it is recommended you plan ahead to avoid festive fumbles that could put your business and staff at risk from
claims.

Below are a number of recommendations to help mitigate risk moving into the season’s celebrations:

Recommendations

Have A Clear Start And Finish Time

The event should have a designated start and finish time. This ensures that employees are
reminded they are still on work time. Therefore, any time after the official end is not
considered time worked.

Have your Reasonable Person

It is recommended to have someone volunteer to be a responsible individual. The individual
will help keep an eye out on any behaviours that may be of both physical and, or, psychosocial risk. A call out for a reasonable person should ideally be conducted several weeks
before the event.

Formalise Your Function

When you confirm dates, times and event details; it is important to send a formal reminder
to staff with clear standards of behaviour expected during workplace functions and the
ramifications of failing to follow such standards (i.e. disciplinary consequences as provided
within your relevant policies).

Policies

Ensure you have up to date policies attached when sending through correspondence to staff.
The most common policies include those relating to code of conduct, sexual harassment,
bullying, and workplace health and safety.

Before the Big Day

It is important to send out an email before the event emphasising the required standards
and expected behaviours. It serves as a reminder to staff of disciplinary actions if they do not
continue to respect workplace standards at the event.

Home Time

Ensure there is a safe way for employees to get home, especially those who have been
consuming alcohol. Ideally, someone (i.e. reasonable person) should stay with the employee
until it can be reasonably taken that they are ok to be taken safely home in a taxi, or other
form of transportation.

Case Example

Sione Vai v ALDI Stores (A Limited Partnership)

Application for relief from unfair dismissal – misconduct – held valid reason for dismissal.

Summary

The applicant, Mr. Sione Vai, applied to the Fair Work Commission [FWC] on the premise he was unfairly dismissed following a Christmas function with his fellow co-workers.

Mr. Vai had admitted to pre drinking before arriving to the venue, which was organised by co-workers. There were no managers in attendance and there were no official speeches or other presentations made during the evening, and nobody appeared to be “in charge of the staff”.

Despite the absence of senior management, the party itself was still funded by Aldi for a total of 60 employees from its Dandenong warehousing operations. It was also confirmed that it was a reoccurring party for the business division.

On the basis of this, the FWC concluded that there was sufficient connection to Aldi to warrant it is a work event.

Mr. Vai’s counter arguments in this case included that alleged racist remarks from bar staff were offensive and aggravated the situation. Mr. Vai then claimed that he did not remember throwing the glass across the room, and that to dismiss on the basis of this, was not fair as he did not have any major warnings or conduct issues up until this time.

Mr. Vai also emphasised he was not given a right to respond or a warning to improve his behaviour. Despite this, the employee’s behaviour in throwing a glass across the room was found to warrant ‘misconduct’, in that it caused serious and imminent risk to the health and safety of those in the vicinity, including Mr Vai’s co-worker who he nearly missed with the glass.

The FWC upheld the view that the employee was fairly dismissed.

Why This Case is Relevant?

This case highlights how easily lines between work and play can be blurred.
Even though the employee ‘pre-drank’ in their own time, it still had a major influence on
their work and subsequent employment.

  • low productivity;

Key Takeaways

The core takeaways from this case are the necessity of putting in place solid boundaries with
respect to alcoholic consumption and enforcing clear guidelines on expected conduct in
these events.

Additionally, there is a need to organise these events in a way where you mitigate the
crossover of personal events (pre-drinks) and work drinks.

Furthermore, this case highlights that despite locations; it is still a work event and the
funding these sorts of events is enough to connect the employer and bring forth liabilities
and claims from their employees.

Legal Considerations

It is important for businesses to understand that there can be legal implications if clear
expectations of behaviour are not set. These can include claims like:

Unfair Dismissal Claims

If an employee believes their termination was unreasonable, harsh, or unjust. (As seen in the
case example Sione Vai v ALDI Stores.)

Workers’ Compensation Claims

If an employee suffers illness or injury from a work-related event, they can apply to the
relevant workers compensation body. This is evident through multiple cases where despite
the location not being the usual place of work, the claims were successful based on a
connection to work being established.

Stop Sexual Harassment/Bullying Order

Employees may apply for a stop sexual harassment/bullying order with the Fair Work Commission.

Bullying under the Fair Work Act 2009 (Cth) (FW Act) includes repeated unreasonable behaviour toward another worker or group of workers, that creates a risk to health and safety.

Some examples are:

  • Verbal bullying e.g. teasing, name calling, insults
  • Physical bullying e.g. taunting an employee by stealing their belongings and hiding them, shoving them, standing over them and intimidating them repeatedly
  • Excluding and targeting an employee/group of employees

Under the FW Act, sexual harassment is defined as:

  • an unwelcome sexual advance
  • an unwelcome request for sexual favours
  • other unwelcome conduct of a sexual nature in relation to another worker.

Some forms of sexual harassment may also be considered bullying if the behaviour is repeated, ongoing and unwanted. Examples of sexual harassment can include:

  • Unwelcome physical contact
  • Jokes, emails, and comments of a sexual nature
  • Staring or leering
  • Questioning a person’s personal life by asking intrusive questions
  • Brushing/touching of person intentionally

General Protection Claims

If an employee believes they are adversely affected by having raised a workplace right or complaint, they may be able to apply for general protections claim.

To find out more information, call the Employee Relations Advice Centre at CCIWA on 08 9365 7660 or email advice@cciwa.com.

Written By Simona Sukoska

Real Estate Employers’ Federation of WA (REEFWA), the Chamber of Commerce and Industry of WA (CCI) and Business Law WA (BLWA) has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such.  Specific advice for your situation should be sought from CCIWA, BLWA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.

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