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Staff parties are an employment minefield

6 September 2017

Spring has finally arrived and the countdown is on to the first day of summer when many Kiwis will gather around BBQs in backyards, beverages in hand.

While this is a classic Kiwi experience, people will hopefully be aware that alcohol and the workplace can be an explosive mix.

An engineering firm in Chicago recently had one of their employees, a Mr Makropoulos, arrive at work highly intoxicated. He was told he could not work his shift because he was so impaired.

He was still in the entrance vestibule of his workplace when he called 911 for an ambulance and then pulled the fire alarm for the building at 3:30am. The building was evacuated and firefighters from the next district came to assist because of the size of the building.

He was charged with a criminal offence for pulling a false fire alarm. It also seems likely that his job will not survive this ordeal.

Readers may wonder whether Makropoulos' employer should have done more for him. There was most likely no legal obligation to do more than they did. Perhaps a moral duty should have prompted one of Makropoulos' colleagues to ensure he made it home safely, but that is their choice.

But what about when an employee gets drunk at a work function where an overabundance of free alcohol is supplied? Does the employer have any more obligations then?

In an Australian case, an employer held a Christmas party and supplied employees with a free flow of alcohol.

Sydney road worker Stephen Keenan was an Australian Workers' Union delegate and a work health and safety representative within his organisation and was a good worker.

After numerous drinks Mr Keenan made the most of the opportunity to tell people what he really thought of them. He told a company director to "f... off".

He asked a colleague "who the f... are you? What do you even do here?"

After the party ended he continued on to a bar with colleagues and proceeded to drive a female colleague to tears by calling her a "stuck up b....".

Things got worse. He reached forward and grabbed a colleague's face before kissing her on the mouth and telling her: "I'm going to go home and dream about you."

Finally, he told yet another colleague: "My mission tonight is to find out what colour knickers you have on".

She swiftly replied: "They are white, touch my skirt and I'll kill you".

Not surprisingly, Keenan was dismissed.

But the Australian Fair Work Commission held he was unfairly dismissed, partially because the employer had provided unlimited alcohol and that this was a mitigating factor.

Further, only the events that occurred at the company's party could be considered by the employer as grounds for dismissal.

Some of Keenan's more outrageous behaviour had taken place in a public bar, after the work party had finished.

Employers may struggle to enforce standards of conduct at functions if they serve large amounts of free alcohol. Employers have an obligation generally to treat their staff fairly and reasonably, and to the extent reasonably practicable, to provide a safe place of work.

Most employers value their employees and don't want to sack them for drunken conduct.

What would be the outcome if conduct similar to Keenan's conduct unfolded in a Wellington workplace?

My view is that so long as a fair investigation into the conduct was carried out, conduct of that nature would usually be serious misconduct and justify dismissal.

The golden rule is that an employer taking disciplinary action against an employee must give them a fair hearing and a sanction reflecting the seriousness of their conduct.

Employers who have workers, or other people in the workplace, under the influence of alcohol must also consider health and safety.

The Health and Safety at Work Act requires employers to ensure so far as reasonably practicable the health and safety of persons in their workplace.

Usually an intoxicated employee will pose a serious risk to health and safety. Accordingly, employers should keep intoxicated employees out of the workplace.

The employer's obligations can go outside of the obvious places like the company offices. Venues used for work parties will be considered part of the "workplace" for health and safety purposes.

In the context of work functions, reasonable steps to prevent harm might include providing food when alcohol is on offer and limiting the number of drinks per person.

The definition of "workplace" also includes a vehicle that is used in carrying out work, even if it is not a company vehicle. So if the worker uses a vehicle for their work, such as a mobile salesperson, the employer will have continuing health and safety obligations beyond the building.

The employer should see that vehicles are not operated while an individual is drunk and they would be wise to ensure the individual gets home safely by other means.

Employers can face liability beyond health and safety.

Where harm to a person or damage to property is caused by an employee in the course of their employment, sober or drunk, the employer will be liable.

If a truck driver delivering freight for their employer accidentally drove their truck into a school, the employer would be liable for the cost of the damage caused to the school because the employee was acting negligently in the course of their employment.

Clearly the issue of intoxicated workers must be handled with tact and care. Common sense indicates that the supply of alcohol at work functions should be moderated.

A one-off instance of a worker turning up drunk would result in most employers trying to get the person home safely whether or not they were legally obliged to do so.

Employers should support employees, foster a healthy workplace environment, and promote responsible enjoyment practices at work functions.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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