Monthly Archives: November 2016

Planning for the end of year celebrations – How to avoid festive fallout

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Lyndall Humphries, Senior Associate

The end of the year is fast approaching and so too is your end of year work function. Start thinking now about how to avoid a festive fallout. You don’t want to be that event in the news after the festive season! What type of scenarios are we talking about?

  • the case where a team leader repeatedly made undesired romantic and sexual propositions to a colleague, despite her clear decline and refusal, and suddenly kissed another colleague in an unsolicited and unprovoked manner;
  • the case where a project coordinator aggressively harangued a colleague, repeatedly pushed him in the chest and then threw him fully clothed into a swimming pool. He also refused to leave the premises and initiated a fight with the General Manager who he then pushed to the ground; or
  • the case where a disability support worker made inappropriate and offensive comments and on previous occasions caused a colleague discomfort by wearing to past Christmas parties an apron displaying woman’s breasts with tinsel attached.

These are just some of the situations that have arisen following a festive fallout. Here are six proactive measures for employers to consider ahead of the festive season.

  1. Be creative in the planning of your function to be as inclusive as possible. Not all functions need to be centered around the consumption of alcohol. Be sensitive to the needs of employees of different cultural backgrounds and faiths and those with family or carer’s responsibilities. For example, you may wish to consider whether it might be more appropriate to hold your function during the day rather than after work, whether it might be suitable to invite family members of employees and whether it might be more culturally sensitive to describe the event as an end of year function rather than a Christmas party.
  2. Before the function, be clear with employees about the standards of behaviour expected of them in accordance with company policies (including those dealing with bullying and harassment, anti-discrimination and social media) and the consequences of not meeting those standards. Have your policies in order before the festive season begins.
  3. It is a good idea to specify clear starting and finishing times for your function. Setting boundaries will help to reduce the risk of an employer being found liable for the actions of employees that take place after the function. While it may be common for employees to kick on after the function, this shouldn’t be organised or proposed by the employer. These are important steps for employers to minimise risks, but it can be difficult to draw a line between what is work related conduct and what is beyond the employment context.
  4. An end of year function is a good opportunity to reward employees for their efforts during the year. If drinks are provided it is important that employers ensure the responsible service of alcohol and satisfy themselves that any external function provider will do the same. Think about arranging for drinks to be handed out upon request rather than allowing employees to help themselves.
  5. Appoint a senior manager to supervise the overall running of the function rather than leaving it to run itself. The manager should be responsible for remonstrating with employees about bad behaviour, limiting or refusing alcohol to employees who are visibly intoxicated or suggesting that employees head home.
  6. If allegations of bad behaviour are raised after the function, conduct an investigation into the facts and allegations and ensure that procedural fairness is afforded to the employees in question. Any disciplinary action that is taken against an employee should not be inconsistent with the treatment of other employees for similar or worse incidents.

We hope these proactive measures help you to enjoy the festive season without fear of legal implications. If you would like further information on the above please contact a member of the PCS Legal Team.

​Dual manslaughter charge for health and safety incident

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Benjamin Urry, Associate Director

You may be aware of recent reports of a serious incident that occurred last month in which two construction workers were killed, and which has resulted in their supervisor being charged with two counts of manslaughter.

This incident highlights that businesses, including directors and supervisors, need to be aware that safety incidents can result not only in payments of compensation for victims, but can also result in breaches of health and safety laws (carrying significant financial penalties) or even criminal manslaughter charges with lengthy imprisonment terms.

Fatalities at Eagle Farm Racecourse

On 6 October 2016, two construction workers working at Eagle Farm Racecourse were killed when two concrete slabs surrounding a drainage pit they were working in collapsed. The two workers appeared to have managed to avoid being crushed by the first slab by climbing out of the pit in the only way available to them (being a steel ladder), but unfortunately they were unable to avoid being crushed by the second slab.

Following initial investigations into the incident a director of the company responsible for the workers (with 40 years’ construction experience), who was their supervisor at the time, has been charged with two counts of manslaughter.

Workplace Health and Safety Queensland is continuing to investigate the incident. This investigation may result in further charges being brought against businesses or individuals where there is evidence that they may have breached WHS laws in relation to the incident, however it is too early to tell what may happen.

Proactive reduction in exposure is the key

In our view, being proactive, rather than just hoping that something will not go wrong, clearly is the best strategy in managing or reducing a business’ potential exposure to WHS liability.

Taking proactive steps to reduce potential exposure to WHS liability will not only reduce the potential financial and personal costs associated with a WHS breach, but also create safer and healthier (and more productive) workplaces.

Examples of steps that businesses may take in order to reduce their potential exposure to WHS liability are set out in our previous blog “’Tis the season for no so jolly injuries” (click here). These include updating policies, consulting with contractors, and training officers and workers on their WHS duties.

If you would like further information on how your business can reduce its potential exposure to WHS liability, please contact a member of the PCS Legal Team.

​‘Tis the season for not so jolly injuries

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Benjamin Urry, Associate Director 

Christmas – the season for warmer weather, social catch-ups and end of year work functions.

Christmas – also the season of urgent deadlines, completing tasks to go on leave that little bit earlier, and perhaps not surprisingly the season of increased work health and safety incidents.

Work health and safety (WHS) – what’s not on Santa’s list

With the festive season upon us, businesses sensibly remind workers about the need to drink responsibly and treat other workers with respect to avoid bullying, discrimination and harassment issues. However, what is all too commonly left off Santa’s “workplace checklist” is the management of work health and safety risks.

Statistically speaking, the last two months of the calendar year result in the most work health and safety incidents. By way of example, just under half of all workplace fatalities in Victoria in 2015 occurred in that brief lead up to the end of year holidays.

Despite these statistics, many businesses either don’t have sufficient practical and legal measures in place to ensure, so far as is reasonably practicable, the health and safety of its workers. This may include continuing to use outdated policies and procedures applying old laws (“old” being pre-2011) which may result in a higher contractual liability. Alternatively, businesses may solely rely on “paper only” systems as opposed to systems which are flexibly designed to accommodate changing WHS risk profiles in the business.

Changes in 2011-2012 to WHS – the item left in the bottom of the stocking

In all States and Territories except Victoria and Western Australia, work/occupational health and safety laws were overhauled in 2011-2012 to provide for a more uniform national system. As a result of these changes, businesses needed to ensure that they were across the changes, including policy updates and better training for a broader range of workers beyond just employees (such as contractors who under WHS laws are considered workers).

However, in our experience many businesses are either not across these changes and rely on outdated policies and procedures or made some progress with implementing the required changes but have put them into the “I’ll get back to it later” basket.

Putting WHS on Santa’s list

With penalties at the levels set out in below table, increased safety risks associated with end of year functions or workers taking short cuts in the end of year rush, now is the time to initiate or finish those updates to your WHS policies, procedures and training.

A checklist of some of the items we would recommend as a minimum requiring attention is set out below:

  1. Update/prepare WHS policies and procedures, including the mandatory issues resolution policy (failure of which is a breach of WHS laws).
  2. Think about arrangements with contractors and other third parties and ensure they are required to comply with WHS obligations, including consulting with your business about WHS. This may necessitate an update to contractual terms.
  3. Train workers, managers and officers on their WHS obligations. This can be done separately or in conjunction with any end of year bullying, harassment and discrimination training. However, if this is the first time these persons are being trained on current WHS laws, separate training is recommended.
  4. Have appropriate systems in place to deal with incidents should they arise, including reporting chains and how to respond to investigations by safety regulators.

If you would like further information on the above or assistance reviewing or preparing WHS policies, procedures or training please contact a member of the PCS Legal Team.