By Joanna Knoth, Senior Associate and Lauren Wright, Law Clerk
As we rapidly approach the end of the year, the office Christmas party can be cause for concern for many employers. There are two key issues that employers should turn their mind to when planning the party.
Issue one: Is the venue safe and suitable?
Mr McDaid was employed by Future Engineering and Communication Pty Ltd (FEC) in the position of Project Coordinator.
In the lead up to Christmas 2014, FEC arranged for their employees to enjoy a day of go-karting followed by a Christmas party back at the FEC premises.
FEC provided alcohol, soft drink and food for the employees. There was also a swimming pool at the premises.
Mr McDaid become verbally and physically aggressive to another employee, and pushed him into the pool, fully clothed. Mr McDaid refused to leave the premises and then initiated a fight with the General Manager, who sustained minor injuries.
Unsurprisingly, Commissioner Williams found that Mr McDaid had not been unfairly dismissed. However, the Commissioner also noted that:
- It was clear that a number of the employees present at the function were affected by alcohol.
- There were no controls over the amount of alcohol individuals chose to consume.
- An employer that provides alcohol at a work function and takes no steps to ensure it is consumed responsibly may, in some circumstances, be culpable for events attributable to the consumption of alcohol.
When selecting a venue, consider the following issues:
- Will the venue staff ensure the responsible service of alcohol?
- Have you communicated clear limits on the consumption of alcohol to the venue staff?
- How will the venue staff ensure any employees under 18 years of age are not served alcohol?
- Will there be sufficient food, plenty of water and non-alcoholic beverages available to employees?
- Is the venue wheelchair accessible?
- Are there any particular safety risks at the venue? For example, a pool, a balcony or stairs?
- How will you manage these safety risks before, during and after the party?
Issue two: Have the standards of behaviour required been clearly communicated to employees, in advance of the function?
Mr Vai was employed as a Warehouse Operator by ALDI Foods Pty Ltd (Aldi) at its Distribution Centre in Dandenong. He had been employed by ALDI since 1 November 2013.
In November 2017, Mr Vai attended a Christmas party organised by the Section Leaders at the Distribution Centre but was approved Aldi. It was held in a private room at the Atura Hotel in Dandenong. The costs of the room hire, food and drinks were met by Aldi.
During the evening, Mr Vai threw a beer glass in the direction of some other employees, narrowly missing them and smashing into the wall behind. Aldi terminated Mr Vai’s employment.
Mr Vai submitted that:
- he was intoxicated as a result of alcohol consumption at a Christmas function when he engaged in the relevant behaviour; and
- Aldi had failed to exercise any real control over the service of alcohol at the function.
On balance, Commissioner Gregory was not satisfied that Mr Vai had been unfairly dismissed. However, the Commissioner noted that:
- Mr Vai and the other employees were not given any guidance or direction on the expected standards of behaviour in advance of the function; and
- any employer who decides to hold a Christmas party has an obligation to take reasonable steps to ensure appropriate standards of behaviour are maintained, and the safety of those attending is protected.
Don’t assume that employees are aware of what does and does not constitute appropriate behaviour at the function.
Prior to hosting the function, ensure that you have clearly communicated the standards of behaviour required to employees.
The communication should be in writing and should include the following:
- the function is a work function, accordingly, employees are required to meet the same standards of behaviour required in the workplace;
- employees should behave responsibly and respectfully, and avoid engaging in any conduct that may cause regret, or result in disciplinary action; and
- employees are expected to consume alcohol responsibly.
The communication should attach or provide a link to any relevant workplace policies or procedures.
This marks day one of MDC Legal’s 12 days of Christmas which will address a variety of issues that may arise in the workplace throughout the festive season.
 McDaid v Future Engineering and Communication Pty Ltd  FWC 343.
Vai v ALDI Stores (A Limited Partnership),  FWC 4118.