Christmas Work Functions – When does an Employer’s Duty of Care End?

With the festive season quickly approaching, it is a good idea for employees and employers alike, to consider workplace health and safety responsibilities and how they apply to work functions like Christmas or New Year parties, both inside the workplace or outside.

Section 19 of the Work Health and Safety Act 2011 (Qld) sets out the primary duty of care that an employer has to its employees. It states that:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

This duty of care extends to work related functions such as work organised Christmas parties. Even at such functions, the employer must take reasonable steps to ensure the safety of its employees. This may include ensuring, amongst other things, that the party is held at a safe venue, that there is not likely to be excessive alcohol consumption, and reminding employees about appropriate work function conduct and behaviour. Whether there is alcohol at a work function or not, the expectations on employee behaviour should be much the same as when they are at work.

Determining when the employers’ duty of care ceases after a work function or Christmas party is a circumstantial question. Just because a work function or Christmas party has ended, does not mean that the employer’s duty of care necessarily ends. Even once staff have left the organised event, the organisation may still be liable if an incident occurs following the event. To this end, it is important that employers do what they can to ensure that staff get home safely.

The standard that usually applies is that the employer has a duty of care to the employees while they engage in any activity reasonably associated with attending a work function. This may include travel to and from the function. However, the employers’ duty of care ceases when the employee is deemed to be going off on a “frolic of their own”.

In the High Court case of Comcare v PVYW [2013] HCA 41 at 35, the Court stated:

“Because the employer’s inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer’s liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.”

So if an employee engages in an activity that is not part of the expectation of activities undertaken while at a work function, then they are likely to be stepping outside the ambit of the employers’ duty of care.

It is the same situation when an injury was not reasonably foreseeable. An example of this was when an employee was at a work function on a boat, and they requested that another person (not a fellow employee) stop swearing because there were children present; the employee was then assaulted by the other person. In this instance, the employer was not deemed to have a duty of care to the employee as it was not reasonably foreseeable that the employee would have been assaulted in this way.

If you have sustained an injury at a work function or Christmas party, it is always best to seek the advice of a lawyer when determining if your employer might be liable. If you would like to discuss employer negligence or anything related to workplace injury, contact our offices for a free consultation with one of our Brisbane personal injury lawyers on (07) 3252 0011 or through our general enquiries page.

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