End-of-Year Work Functions
For most employees, end-of-year work functions represent an opportunity to catch up with their colleagues and reflect on the past working year. The relaxed atmosphere at these functions, which are typically held away from the office or workplace, may lead employees to forget they are at a work function. The availability of alcohol at these functions can further cause employees to engage in unprofessional or otherwise undesirable behaviours.
The question of whether an employer can discipline an employee for conduct occurring outside of ordinary working hours is one which arises often in the context of end-of-year work functions. Following a series of cases relating to dismissals for out-of-hours misconduct, it is now generally accepted that an employee may face disciplinary action for such conduct where there is a relevant connection between the conduct and the employment relationship.
End-of-year work functions are usually considered to have a sufficient connection to an employee’s employment, particularly if an employer has organised the function or has encouraged employees’ attendance at the function.
What is Sexual Harassment?
Sexual harassment is a form of sex discrimination which is unlawful in the workplace and other areas of public life. Sexual harassment involves unwelcome conduct of a sexual nature or a request for sexual favours. In order for such conduct to be unlawful, it is necessary to demonstrate that a reasonable person would have anticipated that the conduct would have made the victim feel offended, humiliated or intimidated.
Additionally, under work health and safety legislation, employers have a duty to ensure, so far as is reasonably practicable, the health and safety of their employees, including by protecting their employees from sexual harassment. This duty is not limited to the employer’s workplace, and extends to any location or situation relating to work including end-of-year work functions.
In certain circumstances, an employer may be found to be vicariously liable for the sexual harassment engaged in by its employees – particularly if the employer ignored or failed to take steps to prevent the sexual harassment from occurring.
The Further Respect@Work Bill
In late September 2022, the Federal Government introduced a further Respect@Work bill in an attempt to provide greater protections against workplace sexual harassment. This further Respect@Work bill follows an earlier bill passed in 2021 in response to the Respect@Work Report released by the Australian Human Rights Commission in March 2020.
If passed, the further Respect@Work bill will implement a further 7 of the 55 recommendations of the Respect@Work Report, including:
- by imposing a positive duty on employers to take "reasonable and proportionate" measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible – including in relation to conduct engaged in by third parties such as customers or clients of the employer;
- by prohibiting conduct that subjects another person to a workplace environment that is hostile on the ground of sex; and
- by lowering the threshold of harassment on the grounds of sex (currently, the threshold for harassment on the grounds of sex is “unwelcome conduct of a seriously demeaning nature” - the bill proposes to remove the word “seriously” from that definition).
Recommended Actions
To ensure compliance with the further changes and stricter duties arising from the further Respect@Work bill (as a pro-active measure and for good corporate governance), employers should update all relevant policies, procedures and online training modules, and ensure that their employees understand what sexual harassment is and that sexual harassment will not be tolerated in the workplace.
In the context of upcoming end-of-year work functions, employers should also consider:
- managing employees’ consumption of alcohol by limiting the types and quantity of alcohol available (i.e. by only making wine or light-strength beer available);
- ensuring that a senior member of management remains present (and sober) during the function, who can monitor employees’ behaviour and intervene where sexual harassment and other unacceptable conduct occurs or is likely to occur;
- ensuring employees do not bring alcohol from home or illicit drugs to the function;
- reminding employees that the function is work-related and that employees are expected to demonstrate the same standards of behaviour that apply during ordinary working hours;
- clearly communicating when the function will conclude;
- ensuring that employees either leave the venue at the end of the function, or are made aware that their continued presence at the venue after the function is unrelated to their employment; and
- reminding employees prior to the function that sexual harassment is unacceptable and may result in disciplinary action, up to and including the termination of employment.
If incidents do occur during an end-of-year work function, employers MUST promptly investigate the incident and take remedial and/or disciplinary action (after due process) where appropriate as soon as possible.
If the termination of an employee’s employment is being considered, employers should first obtain professional legal advice to ensure that the termination process is procedurally fair and that the decision to terminate can be objectively justified (to help protect against unfair dismissal claims).
Questions/Assistance
If you have any questions in respect of the above or would like any other employment related assistance, please contact the Matthews Folbigg Workplace Solutions employment law team.
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DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.
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