Australia: How to avoid HR hangovers this holiday season

Social media misuse, sexual harassment and drunken misconduct are some of the key risks employers need to proactively manage in order to minimise the risk of adverse claims arising from end of year celebrations.

Key risks for employers

1. Social Media

• An employee uploading scandalous photos of a drunken colleague at a work Christmas party or sending inappropriate messages to a colleague via social media can lead to a range of claims being lodged against the employer and employee concerned, including claims for sexual harassment and bullying. These types of activities can also cause reputational damage to an employer's business, particularly if an employee's personal social media presence is linked to their employer's social media profile or otherwise traceable to their employer through the use of employer branded hashtags or tweets.

While an employee's inappropriate use of social media should not go unaddressed, employers should be mindful that the appropriate disciplinary response to a single instance of social media misuse will depend on a range of factors, including the nature of the content posted and the breadth of its publication. As highlighted by a recent decision of the Fair Work Commission (FWC), merely unfriending a colleague on Facebook is unlikely to constitute bullying or misconduct unless it forms part of a broader pattern of unreasonable bullying behaviour. ¹

2. Sexual Harassment

• An employer may be vicariously liable for sexual harassment that occurs during work-related functions unless it took all reasonable steps, through training and other measures, to prevent the harassment from occurring.
• A recent decision of the Full Federal Court in Vergara v Ewin [2014] FCAFC 100 has significantly broadened the concept of what constitutes a workplace by finding that a contractor sexually harassed an employee in various locations outside the office, including at a hotel and on the footpath of a city street.
• Employers need to be aware when formulating and implementing training on sexual harassment that liability can extend to sexual harassment which takes place during after-hours functions, the journey home from work parties and as a consequence of an employee's use of social media.

3. Work Health and Safety

• To comply with work health and safety duties, employers need to take reasonable steps to identify and reduce potential risks and hazards that may arise in connection with work Christmas parties and other end of year celebrations.
• Employers should undertake a risk assessment of internal or external function venues to identify potential health and safety hazards and ensure that effective risk management strategies are in place to ensure the safety of workers attending these functions. Employers should also monitor the capacity of employees to perform their duties following such events and be vigilant of employees who arrive at work under the influence of alcohol, especially if they are required to operate or drive machinery.
• In particular, employers should take steps to ensure that any alcohol consumed at end of year parties is consumed responsibly, by limiting the supply of free alcohol and providing sufficient non-alcoholic alternatives. As highlighted by the recent decision of the FWC in Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156 an employer's ability to discipline employees for drunken misconduct at work functions may be curtailed where the supply of alcohol is unlimited and unmonitored. In this case the FWC found the dismissal of an employee, who swore at his boss during a work Christmas party and harassed a colleague after the event, was unfair because the employee's conduct was mitigated by the fact the employer provided copious amounts of alcohol at the event and did not take sufficient steps to ensure the hotel hosting the function would serve alcohol responsibly, other than entering into a venue hire agreement with the hotel in which the hotel agreed to take this responsibility upon itself.

Key ways to manage and minimise these risks

1. Ensure that workplace policies dealing with social media use, sexual harassment, bullying and work health and safety remain current and that workers have received adequate training about these policies in the lead up to the holiday season.
2. Remind workers that workplace policies apply to internal and external functions and that inappropriate behaviour which occurs outside the office, including at client sites, external party venues or following work-sponsored events, may still be subject to disciplinary action up to and including termination.
3. Ensure that responsibility is allocated to particular individuals to monitor alcohol consumption and ensure that workers who are under the influence of alcohol have a safe means of travelling home from the event.
4. Ensure that workplace policies are not only enforced, but also enforced with consistency.
5. Ensure that all complaints and instances of misconduct that warrant disciplinary action are properly investigated where necessary, and are promptly addressed.

Footnote

¹ Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird [2015] FWC 6556

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.