As we approach year end, and the traditional workplace Christmas function, alcohol consumption is often the accepted norm. Enjoyed in moderation, alcohol can have some utility in reducing stress and lubricating solidarity amongst management and staff. However, from both disciplinary and safety perspectives, over-indulgence of alcohol can become the demon leading to severe outcomes, including dismissals, or worse still, bad publicity for the business that was unforeseen.
We look at the risks and offer advice on avoiding the demons that may manifest out of your Christmas function.
What can go wrong – well quite a lot actually!
Research 1 shows that 70% of employees have alcohol available at work functions. The majority report no significant problems, but it is the 20% of employees who reported ‘sometimes big trouble’ and the 25% of employers who have to deal with inappropriate behaviour, that should be our focus. Identified from Authority records, 199 cases had alcohol in some way related to the matter; of these 21 cases involved alcohol consumption in a workplace setting. The cases which never get to the Authority, but resolve at mediation, exit negotiations or voluntary resignations are the stuff of stories – some mentioned in our article.
At the lower end of the scale of impropriety, employers see foolish and embarrassing conduct. This can be harmless, but may quickly escalate like where ‘getting a little crazy’ sees staff doing wheelies in the car park, or pushing other employees into the fish pond. Loss of control can rapidly move from mere loss of reputation into a dangerous situation, such as a reported young tradie ‘becoming paralytic’ and collapsing in the toilet, not being found until the following morning ( probably lucky to have not choked to death.)
General rowdiness can degenerate into offensive and aggressive/harassing behaviour. Assaults can be verbal or physical, and are exhibited between co-workers or directed at management. There are always incidents were the employee has ‘dissed management’ after one too many, and this sort of conduct can and often does lead to dismissal. A colourful Australian 2 case saw Mr K consume 13 alcoholic drinks on top of 2 pre-function beverages.
He was dismissed for no less than 8 incidents of harassment ranging from swearing at a Director, sexually harassing female staff and kissing one, asking another the colour of her underwear.
Of great concern to employers is that, on appeal, Mr K successfully argued unjustified dismissal partly on the grounds that the employer had provided unlimited alcohol and had breached its health and safety obligations.
Employer’s responsibilities
Employers need to understand their obligations under the Health and Safety at Work Act (HSWA 2015) which specifically obligates employers to ensure the ‘health and safety’ of their employees in the workplace. Employers who provide or allow alcohol at work functions must proactively take all practicable steps to manage and minimise relevant alcohol-related risks and hazards. The employer’s policy in relation to alcohol should be clearly spelt out to employees, and where employers exhibit responsible expectations towards alcohol consumption, research shows employees generally support the practices endorsed.
MBIE 3 has guidance on serving alcohol safely at the workplace with ‘good host’ best practices and the acronym SAFELY outlined there summarised is:
SAFELY means:
S – Use responsible alcohol service – follow the law around serving alcohol A - Provide alternatives to alcohol – have no and low-alcohol options F – Offer plenty of food – including some healthy options E – Prevent excess consumption and intoxication – limit the amount of alcohol on offer L – Organise lifts – help people get home safe Y – Look after young people – those who are under 18, or those who can legally drink but may not be experienced drinkers.
Employee’s responsibilities
While the responsibility for employee safety rests with the employer, the behavioural impropriety and misconduct rests with the employee. Employees have clauses in their contracts which detail expectations of conduct, and staff need to know that workplace social occasions are not the opportunity to liquor up and spit out grudges they may hold with colleagues or management.
Misconduct that happens at work sponsored social functions will almost always fall within employee misconduct jurisdiction and employees need to be educated that this extends beyond the workplace drinks, as conduct that occurs outside of normal hours and off site can still be an employer’s responsibility, if there is sufficient nexus to the employment. The well know case of Hallwright v Forsyth Barr ( 2013) saw the employee dismissed for behaviour completely outside of the ambit of his employment, but which brought the employer’s reputation into disrepute.
An employer should educate and promote the right drinking culture within (and outside) the workplace; sage advice to employers is always lead by example. Management drinking behaviour sends the message of what is expected. The employer’s organisational cultural values are not always written in policies; acceptable drinking in the workplace needs to be formally communicated so there is no misunderstanding. Finally, prior to a social work event, take the opportunity to remind your employees that the usual standards of workplace behaviour apply.
The legal team at Straighttalk Law wish all our clients a safe and demon-free break.
1. Otago University, Department of Management
2. Keenan v Leighton, Boral Amey NSW Pty Ltd (2015) FWC 3156, Australia
3. https://wellplace.nz/ideas-and-advice/alcohol/be-a-responsible-host/
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