Key points

• End of year work functions are fast approaching for many businesses
• It is important to remember that work functions are still ‘work’, and therefore workplace standards continue to apply
• In light of the proposed positive duty on employers to prevent sexual harassment and discrimination, we consider some tips for ensuring end of year parties are remembered for all the right reasons

Work functions – still ‘work’

It is well established that work functions are sufficiently ‘connected’ to the workplace and therefore a work function is still effectively ‘work’.

Unlawful behaviour which occurs at a work function, such as sexual harassment or unlawful discrimination, can be the subject of a workplace complaint or litigation. Employers cannot waive their liability to comply with and uphold their obligations to employees at a work function.

Similarly, employees can be subject to disciplinary action, including termination of employment, if they engage in unacceptable or unlawful behaviour at a work function.

Proposed positive duty to prevent sexual harassment in the workplace

Now more than ever, employers are expected to take positive steps to ensure their employees are safe at work, and particularly, to prevent sexual harassment in the workplace. This expectation is mirrored in Bills currently before Parliament.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 implements recommendations from Sex Discrimination Commissioner Kate Jenkins’ Respect@Work report. This includes amending the Sex Discrimination Act 1984 (Cth) to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination, including sexual harassment, as far as possible. If the Bill passes, employers will have to demonstrate that they have taken proactive steps to eliminate sex discrimination and sexual harassment in the workplace.

Additionally, existing discrimination laws already operate in such a way to render employers vicariously liable for the unlawful behaviour of their employees if the employer did not take reasonable steps to prevent the unlawful behaviour.

Preventing unlawful discrimination and sexual harassment in the workplace, including at work functions, is not only the right thing to do, but also a commercial necessity. The Respect@Work report found that workplace sexual harassment cost the Australian economy approximately $3.8 billion in 2018.

It is not enough for employers to close their eyes to suspected unacceptable or unlawful behaviour and wait until serious incidents occur before taking action.

Ensure your end of year functions are remembered for all the right reasons

To ensure end of year functions are remembered for all the right reasons, employers should consider the following:

1. Ensure that the policies on unlawful discrimination, sexual harassment, bullying and workplace health and safety are up to date, and that employees are educated on those policies.
2. Run training for employees about appropriate workplace conduct, including by explaining and providing examples of what constitutes unlawful, discriminatory or inappropriate behaviour. For example, in the context of a work function where employees may be dressed up, it is inappropriate to comment on how your colleague’s figure looks.
3. Ensure responsible service of alcohol. In McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343, the employer organised a Christmas party at which there “were no controls over the amount of alcohol individuals chose to consume.” Mr McDaid attended the party and was “inebriated and behaved in an aggressive manner” and pushed a colleague into a swimming pool. The employer dismissed Mr McDaid, who brought an unfair dismissal claim. Ultimately, the unfair dismissal claim was unsuccessful, however the Fair Work Commission commented that “in some circumstances an employer that provides alcohol at a work function and takes no steps to ensure it is consumed responsibly may be culpable for events attributable to the consumption of alcohol…”
4. Designate someone to monitor hazards and supervise the conduct of work events. The designated person should be sober and able to monitor and attend to occupational health and safety hazards at the work function – for example, such as wet floors and broken glass. Additionally, make sure all attendees know who to speak to if they have any concerns at the function.
5. Advise employees of the start and finish time of the function and consider arranging for transport home (i.e. through cab / Uber vouchers).
6. Remind all staff by email before the function of the standards of behaviour expected at workplace functions and the consequences of failing to meet those standards. Just because the work function is outside of standard working hours and may be at a non-work venue, normal workplace expectations continue to apply.

Fun and safety are not mutually exclusive – in fact, it is very hard for one to legitimately exist without the other. It is in everyone’s interest for people to party safely. In the wise words of Mariah Carey, “All I want for Christmas is [a respectful and fun end-of-year work party].”