Legal Considerations for Employers During the Silly Season

Every year, around this time, we get questions about employer’s obligations to their employees, particularly in the context of workplace functions. There are many parties, celebrations, after-work drinks and festivities for employers and employees to attend, and many of them are connected to work. As such, employers should be aware of, and be prepared for, the potential legal risks and liabilities that may arise.

Attendance at a work function, be it a Christmas party or some other social function, can be considered conduct that is “in the course of employment” and therefore, the employer has all the same legal obligations to it employees as it would usually have.

This notion has been considered in various cases over the years, including workers compensation decisions. For example, in the case of Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365, an employee drove her work vehicle to a Christmas party, consumed alcohol and drove home at 2am with a blood alcohol level of 0.124. She was asked by her employer during the night not to drive due to her intoxication. She ignored this direction and had an accident whilst driving home and sustained significant injuries. The employee lodged a workers compensation claim, which was denied by the insurer, but then the arbitral decision upheld that her injuries were ‘during the course of employment’. However, this decision was appealed and the worker was found to have been acting outside the course of employment as she was driving a company motor vehicle and disobeyed the direction of her employer. However, had the employer not given this direction to outcome may have been different.

Another high profile matter was that of Carlie Streeter v Telstra Corporation [2007] AIRC 679 in which Ms Streeter successfully challenged her dismissal by Telstra after they alleged that she sexually harassed another female employee following a work Christmas party. Again, the case tested the notion of what is considered ‘in the course of employment’.

The main legal risks for employers to be mindful of during the party season are potential sexual harassment incidences, followed by O,H & S risks,  workers compensation claims and also the issue of negligence and discrimination.

To try and minimise the impact of these risks, workplaces should consider the introduction of a social functions policy. A policy such as this should be rolled out to employees well before any function goes ahead. Employees need to read and understand the policy fully, and it can be a wise idea to cover off on the policy and the corresponding expectations of behaviour at a staff meeting.

When discussing a workplace function at any meeting and potentially introducing a policy, the following points need to be made clear to employees:

  •  Employees should adhere to the expectations of behaviour that the Company sets out and adhere to the provisions of other applicable workplace policies.
  • Employees should consume alcohol responsibly, and not drive home if they have been consuming alcohol at a workplace function.
  • Employees should take steps to organise alternative transport home before the function begins if they intend to consume alcohol at a function.
  • Employees should be stewards of their fellow employees welfare, and take reasonable steps to provide a safe environment, free from harassment and discrimination, and help arrange transport home for those employees who may have consume excessive amounts of alcohol.

When employers are considering organising a workplace function they should consider the following:

  •  Setting a clear start and finish time to the function,
  •  Setting a reasonable limit on the amount of alcohol available,
  • Ensure that obligations in relation to the Responsible Service of Alcohol (RSA) are being met. This means have servers that have the RS accreditation and making sure there is no service of alcoholic beverages to intoxicated persons,
  • Considering what public transport options might be available when selecting a venue for a function,
  • Ensuring that non-alcoholic options are available,
  • Ensuring that there are safe transport options home for those who have drunk too much (eg. CabCharge vouchers),
  • Making  sure there is food served,
  • Ensure that no alcohol is provided to employees under the age of 18 years,
  • Be alert to harassment and other potential forms of abuse or discrimination,
  • Consider the diversity and cross cultural backgrounds of employees when planning an event, and ensure that no particular person or group is excluded or isolated from an event,
  • If gifts are to be exchanged, provide guidelines on the appropriateness of such gifts before the event.


Authors: Andrew Bland, Principal and Danica Leys, Solicitor


For more information on the provision of workplace policies, please contact us at [email protected].

This article is intended as a guide only and does not replace specific legal advice.

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