Christmas is a joyous time of year but, unfortunately, it’s also a time of year that poses a lot of risk to employers.


Not to worry, your friendly neighbourhood Grinches (aka the Employment & Industrial Relations team) are here to warn you of the pitfalls of the silly season, and to give you guidance on how to avoid them.

Secret Santa
Anonymous gift giving may be seen as an opportunity to have a joke at an employee’s expense.  However, gifts that some might think are harmless or funny could constitute discrimination, bullying and / or harassment, all of which employers can be vicariously liable for.

Remember the public servant whose career was ruined by a pooping reindeer that was given to him as a Secret Santa present?  Well, that prompted the Australian Public Service Commissioner to announce a warning to public servants about “festive fun.”  There were even calls to ban the “Secret Santa” or “Kris Kringle” tradition in the Public Service.

To avoid any issues, we recommend that employers keep a record of who gets who in the Kris Kringle, issue a warning that Secret Santa shouldn’t be used as an opportunity to poke fun at colleagues, and deal with any complaints from disgruntled gift recipients promptly.

Christmas / New Year Shutdown
Most employers shut down over Christmas to New Year, but every year we get questions about how to do it.

The first step is to check which of your employees are covered by an Award or Enterprise Agreement.

If your employees are covered by an award or enterprise agreement, these documents should be checked to see if they contain provisions that permit you to direct staff to take annual leave over Christmas.

If the award or agreement doesn’t contain provisions about annual leave during shutdowns, an employer can’t direct an employee to take leave.  If you can’t agree with the employee in question about taking leave over Christmas, then the employee will need to be paid ordinary pay for the shutdown period.

If your award does say that you can direct staff to take annual leave, you generally need to give four weeks’ notice. That means you have to make the announcement by 26 November 2018.  Staff that haven’t got sufficient annual leave accrued can be directed to take annual leave in advance of accrual or unpaid leave.

If you have employees who aren’t covered by an award or enterprise agreement, you can direct them to take annual leave during the Christmas shutdown providing the direction is reasonable (e.g.; one or two weeks leave at most).

Public holidays that fall within the Christmas shutdown (i.e.; 25-26 December 2018, and 1 January 2019) need to be paid at public holiday rates, not as annual leave.

Christmas Party
The combination of a social setting, a relaxed party atmosphere and alcohol can create high spirits, which can quickly erode inhibitions and common sense.  Work Christmas parties are not distinct from the workplace, and both Judges and Fair Work Commissioners are increasingly willing to hold employers responsible for poor employee conduct at the work Christmas party.

A quick review of the case law reveals a plethora of workers compensation, unfair dismissal and sexual harassment cases that concern conduct at the work Christmas party.  These cases involve indecent exposure, physical assault, verbal abuse, and requests for sexual favours.

To reduce your risk, we recommend that employers:

  • Ensure they have policies on sexual harassment, drugs and alcohol and bullying;
  • Send out a notification to staff that includes words to the effect of:
    • Christmas parties are still a work function and that the above policies continue to apply; and,
    • Consequences for breaching these policies at the party may include termination of employment.
  • That are footing the bar tab:
    • Have a sober representative;
    • Enforce the responsible service of alcohol; and,
    • Help those inebriated few to get home safely.

If you do have any employees on the naughty list after the party, we recommend that you get advice before following through with any termination.

If you have any questions about the issues we have outlined above, please call our Employment & Industrial Relations team on (02) 6279 4366.

For more information contact the Employment & Industrial Relations Team:

William Ward| Special Counsel
(02) 6279 4444