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Despite the well-known saying, employees should not count on what happens at the annual work Christmas party to stay at the party, accordingly to Slater and Gordon Principal Lawyer Aron Neilson.

The Christmas party is considered a work function, so employers have a duty to ensure a safe environment, but employees also need to remember that inappropriate behaviour could cost them their job, Mr Neilson said.

“There are certainly cases around Australia where workers have been fired due to their actions at end of year celebrations."

Examples include:

  • An IT worker who was dismissed after drinking 12-15 beers at his work Christmas party in Darling Harbour, Sydney, and urinated over a balcony onto restaurant customers below.
  • A man who was fired after drunkenly pushing his fully-clothed manager into a pool during the office Christmas party in Fremantle, WA, before swearing at the General Manager and starting a physical fight.
  • A NSW police officer who was almost fired but instead given a formal warning after he showed his colleagues his ‘party trick’ by opening their beer bottles with his genital piercing.
  • A kickboxing trainer in Melbourne who was dismissed after lying about his sick wife as an excuse to leave his work’s end-of-year awards night early to instead attend a competitor’s Christmas function.

Mr Neilson said because the office Christmas party is deemed a work function, employers can also be held responsible for their employees’ actions.

“There are two main questions a court will consider when determining whether an employer is liable for any injury suffered by an employee at a Christmas party,” Mr Neilson said.

“The first question is whether the employee’s conduct is for the purpose of and in connection with the business and the second is whether the conduct could be seen as being within the ‘course of employment’.

“In the eyes of the law, there is a connection between the workplace and end-of-year celebrations, so discrimination, sexual harassment and workplace health and safety obligations apply and have been enforced in situations."

Examples include:

  • A sexual discrimination complaint upheld against a Sydney business for not inviting the only female staff member to the Christmas party so that they could hire a topless waitress to which she had objected.
  • A workers' compensation case in the ACT where an employee twisted her ankle, fell over and broke her leg at the Christmas party, which was held to be during the course of employment even though the function was after hours.

Mr Neilson noted there have been some cases where employees were denied compensation because their behaviour was held to be outside the course of employment.

“In the NSW case of Scharrer v The Redrock Co Pty Ltd, an employee was seriously disabled in a car crash while driving home from the work Christmas party with a BAC more than twice the legal limit. While attending the Christmas party is within the course of employment, driving home is not viewed in the same way in NSW so she was not eligible for WorkCover.

Slater and Gordon's work Christmas party checklist:

  • Employees should treat the end-of-year party like any other day at work and behave accordingly.
  • Even if the function is unplanned or spontaneous, it can still be considered within the course of employment.
  • Being drunk is no excuse for an employee’s actions or comments.
  • However, employers have a number of obligations, including:
    • Responsible service of alcohol;
    • Providing food and non-alcoholic drinks; and
    • Providing options for employees to get home after the festivities;
  • It’s also a good idea for employers to ensure that relevant workplace policies are up-to-date and communicated to employees ahead of the party, including workplace health and safety rules, anti-discrimination policies, sexual harassment policies and social media guidelines.

Employees should always pause for thought before they post any content from the end-of-year function on social media.

Maximum privacy settings have been proven not to protect employees in court, especially if they have co-workers as friends.

The absence of a workplace social media policy will not save you: the courts view online posts as a public comment, which doesn’t require a specific policy to be taken into account.

Even if a co-worker posts the content, there have been cases where an employee is held responsible even though they were not the original author.

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