As the holiday season approaches, there is no doubt that anticipation and excitement yields itself to the annual workplace end-of-year party.
While this is a joyous time of year, this is also a critical time for businesses to ensure their policies, procedures and party-planning is consistent with the prohibition on sexual harassment as set out in the Fair Work Act 2009 (Cth), and other statutory health and safety obligations.
End-of-year functions can be a fertile ground for a host of workplace disputes and claims – ranging from allegations of misconduct, harassment and discrimination.
Recent amendments to the Sex Discrimination Act 1984 (Cth) (SDA) set out positive duties upon employers to take steps to eliminate, as far as possible, sex discrimination, harassment, behaviour conducive to a hostile workplace environment and acts of victimisation against complainants and whistleblowers.
An employer’s failure to comply with such measures may have significant and serious consequences. For example, the recent case of Taylor v August and Pemberton Pty Ltd [2023] FCA 1313, saw the Federal Court award damages to the victim of $195,000 in total.
But the costs of an investigation and of defending litigation for many businesses and employers may not be solely measured in dollars and cents. The degree of scrutiny businesses have faced over physical interactions between employees at work related events and functions is very high.
This article explores a case study showing just how far the Fair Work Commission has been prepared to go over criticising a workplace drinks function in the past, and some practical steps businesses can implement to help mitigate an incident at a workplace function.
CASE STUDY
The Courts consistently recognise that the ‘workplace’ extends to more than just the four-walls of an office or yard. The definition of ‘workplace’ extends to the people who work together and wherever they interact with one another out of their connection to their employment or engagement.
The decision of John Keron v Westpac Banking Corporation [2022] FWC 221 shows how broadly the Fair Work Commission (FWC) is prepared to go to interpret whether the conduct complained of occurred ‘at work’ in the context of whether there was a valid reason for dismissal.
Mr Keron was dismissed by the employer for engaging in incidents of sexual harassment towards a female colleague without his employer asking for his response to the allegations.
The FWC made the following observations:
The FWC also made several observations about the Sundowner event. Keep in mind these comments were made before the prohibition on sexual harassment came into effect on 6 March 2023.
- employees are safe during the event
- there is a conclusion to the event, and
- employees can get home safely.
Employers are responsible for preventing and responding to unsafe or inappropriate behaviour at end-of-year functions and after-parties.
The following steps might be a good starting point to ensure fulfilment of statutory safety obligations:
If you need assistance with meeting your party-planning obligations or an incident that occurs at a Christmas Party, contact the author on nwhitehead@gclegal.com.au or a member of the Gilchrist Connell Workplace Relations and Health & Safety Team via our website: www.gclegal.com.au
DISCLAIMER
This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.
Natasha is a Lawyer in Gilchrist Connell’s workplace relations and safety team. Natasha has a deep understanding of employment related issues with experience acting on both sides of a case.
She comes from a strong plaintiff background which she applies to her experience in representing employers in the Fair Work Commission, Federal Circuit and Family Court of Australia and the Federal Court of Australia. This breadth of experience allows her to find quick and cost-effective resolutions.
Natasha has broad experience in all areas of employment law and workplace relations. She has acted in matters involving termination of employment, workplace investigations, employee entitlements, interpretation of contracts of employment, statutory discrimination and occupational health and safety.
Natasha is an active member of the Law Reform Committee for Victorian Women Lawyers.