The modern business is pretty savvy when it comes to minimising the risks ahead of the annual end-of-year party.
Much care is given to booking an appropriate venue and ensuring plenty of food is on offer to offset the celebratory drinks.
An office-wide note is usually sent, outlining expected standards of behaviour and clarifying work function start and finish times.
A responsible manager is often appointed to be on the alert for inappropriate behaviour and arrangements made for employees to get home safely.
However, despite the careful planning and risk mitigation across areas like OH&S, sexual harassment, discrimination and bullying, it is called the silly season and things can still go wrong.
The phones at lawyers’ offices usually start ringing in late December and early January of each year with businesses seeking legal advice around post-party fallout.
So what should you do if your business experiences a festive season dispute?
1. Act immediately and effectively
Scheduling a Christmas party or end-of-year function too close to an office shutdown period can make it very difficult to address any issues quickly.
However, one of the biggest mistakes a business can make is leaving the post-party clean up until the new year.
Where a complaint involves one or more employees, this needs to be treated as a priority and, if necessary, the relevant employee stood down pending investigation. Consideration should be given to whether it is appropriate for HR to conduct the investigation or whether to appoint an external, specialist workplace investigator.
Leaving too much time between an incident and taking action can allow tensions to simmer further and undermines your complaints procedure, increasing the risk of a complainant seeking external avenues for redress or making a workers’ compensation claim — as well as jeopardising your legal position if you later decide to dismiss the employee who has behaved inappropriately.
While most staff will likely be in holiday mode or even unreachable over the Christmas break, senior leadership and HR staff should be on standby just in case a complaint is filed. If the key decision maker will be on extended leave, an acting decision maker should be appointed.
If an alleged incident is likely to have been caught on surveillance camera, you should seek to secure footage before it is wiped.
2. Balance the competing risks
If, based on the findings of a thorough and procedurally fair investigation, dismissal is being considered, the challenge is in balancing the risk of an unfair dismissal or general protections claim against the legal, cultural and reputational risks of keeping that person on.
This can be particularly tricky where the conduct occurred after the official work function ended, as different jurisdictions often view ‘out of work conduct’ differently.
Recently, unfair dismissal and workers’ compensation decisions suggest a narrowing scope of out of work conduct, which employers can legitimately take disciplinary action over or be held responsible for. Conversely, in the sexual harassment and bullying jurisdictions, there seems to be a greater willingness to find employers vicariously liable for an employee’s actions outside the workplace.
For example, this unfair dismissal case involved drunken and offensive behaviour at a work end-of-year party and after party, with the Fair Work Commission determining the conduct at the work party was not sufficiently serious to justify dismissal and conduct at the after party was not within the place of work and didn’t sufficiently impact on the employer/employees.
However, in this sexual harassment case, it was determined a hotel across the street and taxi to/from client premises formed part of the workplace.
3. Keep an eye on social media
The digital revolution has transformed the way people communicate and with many colleagues now connected across social media, the lines between the workplace and home have certainly blurred in the eyes of the law.
The challenges of protecting a business and its employees from disparaging comments, photos or videos on social media can be exacerbated in a party environment or when tensions flare following a dispute.
Implementing and promoting a social media policy ahead of time is essential to ensure that staff understand expectations in this area and, where a sufficient connection to work exists, employers can take action where employee use of social media breaches other policies such as bullying, harassment and discrimination.
Even where there is a sufficient connection to work (for example because it affects the business’ reputation or the working relationship between co-workers), disparaging social media posts won’t always justify dismissal, even if they caused embarrassment to the employer or offence to co-workers. A decision would depend on the nature and gravity of the conduct and a range of other factors so it is important to seek advice if you are unsure what side of the line something falls on.
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