I will never forget the year I thoughtlessly volunteered to host Christmas Eve dinner. An hour or so before guests were due to arrive I was racing into the supermarket (where trolleys were considered an early Christmas present) still on the phone dealing with the fall out of a Christmas party gone “wild”. I have since been relieved of Christmas Eve hosting duties, but instead wait for the phone call each year about the next inebriated employee that has taken the term “silly season” a little too literally…
So how far does an employer’s duty to protect the health and safety of employees go? Where is the line drawn on taking “all reasonable steps” to prevent harassment? At what stage can employees be disciplined for “after hours” conduct? Whilst these are questions of fact and degree that must be considered on a case by case basis, following decisions provide some guidance.
Lees v Smith & Ors
In this case the Navy and three of its officers were held liable for $400,000 in damages following the rape of an administrative assistant (Ms Lees) working at the naval base that occurred after work drinks. Although at first glance this case appears to involve after hours conduct that an employer cannot be held responsible for, the following matters that linked the conduct back to the workplace were significant considerations in the decision:
• The rapist was found to have repeatedly harassed Ms Lees at the workplace
• The Navy’s investigation was procedurally unfair and it did not follow its own Code and policies
• Although the rapist was transferred to another workplace, the Navy’s investigation concluded that no harassment had occurred
• Ms Lees was ostracised, intimidated and victimised by management and friends of the transferred officer who attempted
• to have her dismissed.
Streeter v Telstra Corporation Limited
This case involved employees of a Telstra Shop who organised an unauthorised Christmas party. The employees also jointly booked
and paid for a hotel room in which Ms Streeter was accused of sexually harassing a fellow female employee by:
• Bringing two males back to the room and having sexual intercourse with one of them (who was also an employee)
• Requiring the employee to use the bathroom whilst Ms Streeter was in the bath tub with the two males.
An investigation was subsequently conducted into Ms Streeter's conduct, during which she refused to comment on a lot of the allegations and her employment was terminated for misconduct. Whilst it was found that there was scope in the circumstances for Telstra to be liable for sexual harassment, it was held that Ms Streeter’s conduct – as “inappropriate and inconsiderate” as it was – did not amount to sexual harassment. On this basis Telstra was ordered to re-employ Ms Streeter in a Telstra Shop close to her former place of employment.
This case demonstrates the reluctance of the courts to delve into the “private affairs” of employees for the purpose of finding
misconduct of the magnitude that justifies termination. However, Telstra has appealed this decision and we hope that the Full Bench will provide further guidance on these issues in its decision.
Better safe than sued…
The following are the “reasonable steps” that we recommend employers take in the lead up to the “silly season”:
1. Implement or remind employees of Codes of Conduct dealing with drugs and alcohol, sexual harassment, discrimination and other “unacceptable” conduct.
3. Remind employees that the Codes apply to work functions
4. Serve food at functions – particularly if they are after work
5. Ensure venues engage in responsible service of alcohol
6. Set limits on the amount of alcohol to be provided to employees
7. Appoint managers to supervise adherence to the Code
8. Ensure employees that are intoxicated are safely sent home
9. Ensure all employees have a safe method of transport home
Whilst the implementation of a comprehensive Code of Conduct will go some way in assisting employers to discipline employees for unacceptable behaviour, consistency in enforcement and leading by example are instrumental to this process. However, if managers forget, the courts will be sure to remind them that “What’s good for the goose is good for the gander!”