The holiday season is around the corner. Businesses are turning their minds to organising rosters and getting their head around the implications of public holidays on labour costing while they are organising additional holiday stock and ice freezers and generally getting ready for the Christmas rush. But there is another holiday tradition that businesses regularly engage in without really considering the implications on the workplace compliance…the Christmas Party. Case law highlights that the Christmas Party is a work event and injuries occurring at a work event are work injuries as a standard, particularly where the business is providing alcohol.
“This particular case is one that all businesses should be aware of, and should be digesting in the context of the coming holiday season” explains ACAPMAs Elisha Radwanowski.
“The case involves a Hairdresser and Beauty Centre annual Christmas Party event, that included a lunch, with a timed unlimited drinks package provided and paid for by the business. It also included accommodation overnight” added Elisha.
“Most businesses are aware that if they are providing alcohol that they need to plan for how they will get safely home, be that taxi vouchers or busses. This business has elected to provide staff with accommodation overnight at the venue to ensure that they were meeting their obligations for safety” explained Elisha.
The worker in this case was under the influence of the free alcohol when she slipped getting out of the spa in her room and sustained injuries to her hip and leg.
Following the injury the worker applied for ReturnToWork and medical expenses and weekly payments but was initially denied by the business on the basis of the argument that the business paid for the event, but the employee was not required or directed to attend as a work task and that therefore the injury was not a work injury.
This construction of the injury, as not work related, was overturned on appeal.
In determining the injury was in fact work related Judge Calligeros outlined that the business “actively fostered the attendance and participation of employees in the event” and that the business “tacitly or impliedly invited” the employees to utilise all of the features of the provided event and accommodation, including the spa bath that the worker was using when she was injured.
Judge Calligeros also noted that the worker was instructed by the business owner to exit the spa bath (along with others) because they were too intoxicated to be in the water. It was in complying with this instruction the worker was injured.
In the final analysis Judge Calligeros noted that “a number of the decision and action of [the business] significantly contributed to the occurrence of the injury suffered by [the employee]. This included the nature of the venue, the supply of alcohol and the expressed desire that the employees have a good time”.
The business further appealed the decision, claiming that Judge Calligeros made an error in ruling the injury as a work injury. On appeal this week the panel of Judges agreed that the actions of the worker that led to her injury were not choices of her own, that they were available and encouraged by the business and as such it was appropriate to find that the drinking and the taking of a spa bath while inebriated fell within the scope of work activities.
Learnings for businesses
“This case has some specific features that many businesses could chose to focus on and incorrectly assume that as long as the business doesn’t invite staff into a spa bath then they should be fine to assume the Christmas Party is not a work event…but this would be a mistake” outlined Elisha.
“While the staff being in the spa bath together is an interesting element, it could easily be replaced with a less specific environment. Imagine that the business arranged a Christmas Party at a beachside restaurant, provided hours of alcohol and then a staff member was injured on the beach or falling down the stairs at the restaurant. The business may argue that the stairs or beach are not the workplace, and that walking down the stairs or on the beach was not a work task, but this case shows that if the business is active in providing the environment and encouraging attendance, then it could absolutely be found to be an extension of the workplace” explains Elisha.
“What businesses need to understand is that in order to protect their staff and their businesses through the Christmas Party season, is to set boundaries and limits, communicate expectations and clearly delineate between work and social activities” outlined Elisha.
“Any workplace event should be; optional, supervised and safe. This means that the business needs to ensure that the venue is appropriate and does not encourage unprofessional or unsafe behaviour. While a bar with a bucking bull and a jelly pit may be considered fun for a social event like a bucks party, by setting an event in that sort of venue the business will be seen to be encouraging the use of all of the features of the venue and thus will likely face issues of safety and unprofessional conduct. Similarly, while the business may want to provide staff with a much needed social environment, providing unlimited alcohol significantly changes the risk profile of any event. Some businesses are responding by holding ‘dry’ events, but a considered dispensing approach is also acceptable, such as up to 2 drinks an hour” explains Elisha.
“The business should also communicate expected behaviour before and at the event, and bring the event to a close at a specific time with a clear instruction that the work event has ended and workers are encouraged to be safe if they choose to continue the evening socially together” added Elisha.
“The bottom line is that the business needs to plan now, and keep in mind that the choices and actions of their staff at or around a work event will be tied to the business and it will fall to the business to outline the actions they have taken to create a safe event and delineate between work event and social activity” concluded Elisha.
Here to Help
ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .
HR Highlights are things to consider, implement and watch out for in your business.
They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.
ACAPMA Membership is affordable at only $860 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click here to learn more about ACAPMA Membership.
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