Don't be silly this silly season

Christmas message from the Qld WHS Regulator: "don't let work Christmas parties spoil-a safe working year."

Melbourne Cup marks the beginning of end of year festivities. The Queensland Health and Safety Regulator has published a Christmas party alert to employers to review their bullying, harassment and social media policies, and ensure workers are aware that WHS and behavioural standards apply to work functions.

Last week the Fair Work Commission issued a decision which is a timely reminder for both employees and employers that their workplace responsibilities don’t stop when the party starts.

In Drake and another v BHP Coal Pty Ltd, the FWC was asked to adjudicate two unfair dismissal claims based upon alleged misconduct at a 2018 BHP Christmas party. Mr Drake and Mr Bird were dismissed on the grounds that they had engaged in a physical and verbal altercation with a third BHP employee at a work Christmas function. Mr Drake was also accused of making inappropriate comments to a female colleague.

At the heart of the appeal was the argument that the Christmas party in question was not a work event and so any misconduct was simply not relevant to either applicant’s employment relationship with BHP. This argument carried no weight with the FWC.

Deputy President Asbury found that the event was clearly a work function. BHP had paid for the event to be catered, as well as for buses to transport employees to the party from work. Flyers had been distributed amongst employees in order to inform them of these provisions. Moreover, the Deputy President found that even if the event had not been directly facilitated by BHP, any event “involving some 60 employees of the Company and their family members [would be] sufficiently work related” as to be covered by the company’s code of conduct.

Drake and another v BHP Coal Pty Ltd is an important reminder the FWC takes a broad view of what constitutes a work-related event. Employers should communicate clear policies to employees including a reminder that misconduct at official Christmas parties and informal work-related events may constitute grounds for dismissal. On the flip side, employers must also be aware that incidents at such events may give rise to liability for worker’s compensation, harassment and other claims. Workplaces aiming for an incident-free silly season should educate their staff and management about these risks.