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Employees not to blame… Yeah Right

9 July 2015


Having just passed the middle of the year, there is opportunity for workplaces to organise “mid-winter Christmases” or similar events to celebrate workers surviving the trials and tribulations of six months at the coalface. The responsibilities of employers around alcohol consumption at work parties have come into focus since the Australian Fair Work Commission ruled that an employee who drunkenly abused his bosses and co-workers was unfairly dismissed.

At the company Christmas party, the employer supplied employees with a free flow of alcohol. One male worker consumed at least 11 standards drinks. This alcohol intake sparked a night of regrettable decisions.

First, he told a company director and a senior project manager to “F--- off” and asked a colleague, “Who the f--- are you? What do you even do here?” After the party he continued on to a bar with colleagues and proceeded to drive a female colleague to tears by calling her a “Stuck-up b----“.

The downward trajectory continued when he reached forward and grabbed a colleague’s face before kissing her on the mouth. He then told her, “I’m going to go home and dream about you tonight.”

The finale in this man’s sordid performance occurred as he was waiting for a taxi at the end of the evening. He told another colleague, “My mission tonight is to find out what colour knickers you have on.” She swiftly replied, “They are white, touch my skirt and I’ll kill you.”

The commission held that only the events that occurred at the company’s party itself could be considered by the employer as grounds for dismissal. The worker was found to have been unfairly dismissed because the employer had provided unlimited alcohol and this was a “mitigating factor”. Employers therefore may not be in a position to insist on standards of conduct at functions if they serve unlimited amounts of free alcohol.

In 2013, the Californian Appellate Court decided that an employer can be liable for an employee who drank too much at a company party, made it home safely, and then killed a man in a drunk driving incident after he left his home again.

The court found that the employee was acting within the scope of his employment when he became intoxicated at the party because consumption of alcohol was within usual behaviour within the company and the employment relationship. The employer therefore bore responsibility for the harm done by the employee’s actions.

Company functions, especially the Christmas party, are an important bonding exercise for colleagues, and the goodwill created by such events is undoubtedly beneficial to the employment relationship. While for most, Christmas parties are a fun and carefree time, there is sometimes potential for serious damage to the reputation of individuals as well as the company.

We all know that employees need to remember to be professional and not let go of all their inhibitions, but the equally important, although less spoken of, reality is that employers must remain responsible too. Like individuals, the company must comply with their policies throughout the course of the festivities. There should be a reasonable limit on alcohol supplied and plenty of food should be provided, as well as planning ways for people to get home safely.

If employers pay attention to these key details as they organise their functions, parties can go off without a hitch and, more importantly, without risking liability or careers.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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