By Nikita Barsby, Special Counsel and Madeleine Brown, Associate 

Even the most well managed work Christmas parties sometimes don’t go to plan. We highlight below how to deal with the aftermath if things go wrong.

Address incidents promptly

If there has been an incident at the Christmas party and/or a complaint has been received, it is important to take appropriate action swiftly.

Putting an investigation off until after the Christmas break, or letting issues fester unresolved, is likely to increase the risk of potential legal claims and, importantly, is inconsistent with employers’ obligations to their employees.  From a practical perspective, it may also result in an issue that may have been manageable promptly and informally, developing into a far more complex issue.

Promptly acknowledge receipt of any complaint and have an initial conversation with the complainant about the issues raised. If serious allegations are raised, commence a formal investigation as soon as possible.  While there may be logistical issues to manage, such as annual leave, these should not preclude an investigation from commencing.

Contact MDC Legal for further advice on managing workplace investigations.

Managing absences the next day

A common occurrence after the workplace Christmas party can be employees calling in sick the next day.

While employees are entitled to take personal (sick) leave if they are not fit for work because of a personal illness or injury, over indulging to the point where they are unable to attend for work the next day may be a valid reason for disciplinary action.

In Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd[1], Ms Chapman left a voicemail for her employer to the effect of “I admit I have over indulged so I’m taking into account one of the golden rules be fit for work and I’m not going to be fit for work so I won’t be there.” The employer dismissed Ms Chapman.

Ms Chapman brought an unfair dismissal claim, in which Deputy President Barclay found that there was a valid reason for dismissal in that Ms Chapman had either refused or failed to attend for work without reasonable justification for doing so. The Deputy President held that Ms Chapman chose to ‘over indulge’ the day before she was due at work to such an extent as to be unable to fulfil her obligations to attend for work the next day. However, the Deputy President ultimately held that the dismissal was unfair considering that this was the first time Ms Chapman had conducted herself in this manner during her 5 years of service with the employer.

Employers should remind employees in the lead up to the work Christmas party that they are required to engage in responsible and respectful conduct and can and should require employees who take sick leave following the event to provide a medical certificate.  Disciplinary action may be considered where personal leave is attributable to the irresponsible consumption of alcohol at the workplace Christmas party.

Showing up intoxicated or hungover

Employers have a duty of care to take reasonable steps to provide and maintain a safe working environment under the Occupational Safety and Health Act 1984 (WA). Likewise, employees have a duty to take reasonable care for their own and others’ safety while at work.

Attending work intoxicated or hungover can pose a risk to an employee’s own or others’ health and safety, especially in safety critical environments.

If there is a concern regarding an employee’s fitness for work, a manager or senior staff member who is familiar with the workplace drug and alcohol/fitness for work policies, should assess the situation, speak to the employee concerned and decide whether the employee should be sent home.  Further disciplinary action should then be considered.

This marks day three of MDC Legal’s 12 days of Christmas blog series, which will address a variety of issues that may arise for both employees and employers throughout the festive season.

MDC Legal are employment law specialists assisting employees, employers and industrial organisations – giving us a unique comprehensive insight into employment law issues.

[1] [2017] FWC 4630.