Legal perspective: The Christmas Party in the #metoo era

The Christmas party is nearing and while most employers understand their duty of care extends beyond the workplace, this year it’s especially important. Some FWC cases in particular show that times are changing.

With the end-of-year festivities nearing some employees might take the term “silly season” a little too literally, so employers need to be mindful that their duty of care to employees is not confined by the office walls… but just how far does this duty of care go?

Employers are required to take ‘all reasonable steps’ to prevent sexual harassment and ensure as far as reasonably practicable the health, safety and welfare of their employees. If employers fail to take such reasonable steps to prevent sexual harassment, they risk being vicariously liable for the actions of their employees and agents.

Time is well and truly up

In the past, employers have hesitated to terminate employees following complaints of inappropriate conduct (including sexual harassment) due to countless cases where procedural deficiencies in the investigation and termination process led to a finding a dismissal was harsh, unjust or unreasonable.

However, in the current era of #metoo, the Fair Work Commission (FWC) is increasingly calling #TimesUp on inappropriate behaviour. Cases have been more favourable to employers than ever, reinforcing the ability to create (and insist on) healthy, respectful and inclusive workplaces.

In Carmelo Sapienza v Cash in Transit Pty Ltd T/A Secure Cash, the FWC held the termination of Mr Sapienza’s employment for inappropriate conduct (including asking young female employees of a client for ‘cheeky kisses’ and asking when they will leave their boyfriends and run away with him) was not harsh, unjust or unreasonable, despite him not being afforded the opportunity to respond to the reasons for termination.

“A weird and dirty atmosphere”

In Homer Abarra v Toyota Motor Corporation, Commissioner Harper-Greenwell accepted evidence the group leader had created a “weird and dirty atmosphere” by frequently making sexual remarks and commenting on the appearance of female team members.

“By allowing behaviours of such a nature to take place it is evident that the working environment, although not hostile, was uncomfortable for some and at the very least was an unhealthy work environment,” says Commissioner Harper-Greenwell.

“The comments made by [the group leader] to the young female employees, in my view, were in fact a rather blatant form of benevolent sexism which has no place in the workplace.”

The Commissioner held Toyota had a valid reason to sack Mr Abarra finding “he was responsible for developing and encouraging an environment in which inappropriate behaviour was expected and encouraged. [Even] at the hearing, [he] demonstrated a complete lack of remorse or recognition of the seriousness of his conduct”.

Put a lid on the racial slurs

In Taylor v Star Track Express the FWC upheld the summary dismissal of a StarTrack forklift driver, with 17 years’ service, for directing racial slurs at colleagues. The Commissioner found the excuse that the language was not offensive because no one had complained about it, to have “regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, which has created what is referred to as the #MeToo movement”.

The Commissioner observed the employee “seemed to be unable to appreciate that the racial components of his workplace “banter” was not “part and parcel” of a “knockabout workplace”. They found that: “In simple terms, a line is crossed when race or ethnicity is included in any communications with co-workers, and any suggestion of being well intentioned does not provide a defence or justification for conduct that is fundamentally unacceptable… crudity can be tolerated, racism cannot”.

The FWC took into account the employer’s zero tolerance policy for racism – which included a training video entitled “Expect Respect” – in its culturally and ethnically diverse workforce, the FWC was “not prepared to disturb the balanced and properly considered determination made by the employer”.

How to avoid the legal hangover

Before you cheers your eggnog to the end of the year, employers need to be prepared and proactive in avoiding an end-of-year legal hangover. Here are a few tips to prepare yourself:

  • Reinforce core values, emphasising those focused on respect and inclusiveness, and lead from the top by modelling appropriate behaviours
  • Remind your employees of the Company Codes of Conduct dealing with drugs and alcohol, sexual harassment, discrimination and other unacceptable and inappropriate conduct
  • Remind employees that the Codes of Conduct apply to all Company functions and client events where the employee is representing the Company
  • Serve plenty of food and non-alcoholic drinks at functions
  • Ensure your function venues engage in responsible service of alcohol
  • Appoint a senior manager to stay sober and supervise your functions to ensure all employees are adhering to the Codes of Conduct
  • Ensure all employees have a safe method of transport home
  • Deal with all complaints and conduct investigations promptly and remove employees from potentially harmful situations
  • Follow the correct procedure when issuing formal warnings or summarily terminating employees that earn a spot on the naughty list this year

Fay Calderone is a partner at Hall & Willcox and Jessica Luker is a graduate lawyer. This is an edited version of an article that originally appeared on Fay’s blog.

Educate your managers and staff about sexual harassment – what constitutes such behaviour, relevant legislation and an overview of complaint procedures and management responsibilities, with the AHRI elearning modules on ‘Sexual harassment prevention’.

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