Christmas is not known as the silly season by accident. …


The Christmas season should be a time of joy as we embrace family and friends during what is normally a scorching hot Australian summer. We engage in the traditions of gift giving and participate in numerous private and work celebrations before heading off for a restful break, to renew our energy and ensure that we can return happy to reunite with our colleagues and face the challenges of the New Year.

… at least that is how it should be.

Unfortunately however, the cocktail of relief at having survived to the end of the year, simmering tensions, a company covered bar tab and the ridiculous paper hats, can be a recipe for disaster for some!

Take the example of two BHP employees who attended a Christmas party in December 2018 [1] with 60 other BHP employees and their families, with transport and much of the food being provided by BHP. During the event both employees were involved in an altercation with a BHP supervisor, a man known to both of them. The first grabbed the supervisor by the neck and threw more than one punch, and made a few extraordinary derogatory comments about a female colleague’s “décolletage”. The other was found to have joined in the fracas.

The Fair Work Commission found that: the altercations occurred at a work event despite the fact that it was after hours; because it was a work event, the behaviour of the two was found to have breached BHP’s code of conduct; and the decision to terminate the first employee was not unfair, because the egregious behaviour exhibited was found to have happened and there were no extenuating circumstances that may have mitigated his conduct.

By contrast the behaviour of the second employee who joined the fracas, whilst ‘completely inappropriate and worthy of censure’, did not constitute a valid reason for termination, primarily because whilst inappropriate, it did not reach the level of gravity deserving of termination. Importantly, he did not throw a punch or behave badly towards his female colleague.

What are the lessons?

Christmas is a special time and lots of merriment and fun can be enjoyed at work related events without any untoward consequences, by keeping in mind a few simple guiding principles:

  • Enjoy a drink or few, but know your limits;
  • Make sure you eat and remember the rule of a glass of water to match each alcoholic drink;
  • NEVER drink and drive! There’s no excuse with the proliferation of ride-sharing;
  • Understand that even if an event is off-site or after hours, it is still a work function and all of the normal standards of behaviour and conduct apply;
  • Consider that everyone has a mobile phone and poor behaviour could be captured for posterity (or notoriety);
  • On this note, it is always wise when having a few drinks, to put your mobile phone away and stay off social media;
  • Employers should be mindful that any accidents that occur at a work function, should be dealt with in the same manner as one in the work place[2];
  • Finally, in all these situations, the only ones who generally win are the lawyers.

Merry Christmas from the team at Kott Gunning.

By Mike Baldwin, Special Counsel (mbaldwin@kottgunn.com.au); Stephen Williams, Partner (swilliams@kottgunn.com.au) and Chayla Binyon, Paralegal (cbinyon@kottgunn.com.au).

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice. 

[1] Drake v BHP Coal Pty Ltd; Bird v BHP Coal Pty Ltd [2019] FWC 7444

[2] https://www.kottgunn.com.au/updates/insurance-and-risk/occupational-safety-and-health-getting-burned-twice/