Sasha Borissenko: When Christmas parties go bad, who's liable?

Office Christmas work parties are fraught with potential pitfalls. Photo / Getty Images

Much like the saying "don't drink and fry", it's that time of the year when you "shouldn't drink and mix with the people you fear/loathe/romantically like/resent".

It's time to discuss Christmas parties, ladies and gentlemen. The issue of inappropriate behaviour has finally come to the fore, but it's come at the expense of alcohol-related fun. It's not only a bit of a bummer, it's also possibly misguided.

A University of Otago study, conducted in 2016, found three quarters of the 1000 employers and employees in New Zealand reported that work social functions, both on and off-site, had alcohol available, and were either wholly or partially paid for by the employer.

Most respondents reported no significant problems relating to alcohol consumption. But 20 per cent of employee respondents had seen festivities fall foul when staff overindulged at work events, and 25 per cent of employers had to deal with inappropriate behaviour.

Aggression and sexual behaviour or harassment were rife. Reputational issues included doing wheelies around the works yard, pushing a person into a swimming pool, passing out in a bathroom, or smoking in non-smoking facilities.

Much of the rhetoric points to issues around alcohol consumption, and the need for employers to keep their employees safe irrespective of the fact that such parties might be outside of work hours and offsite. American accounting firm BDO is appointing sober chaperones to mitigate any blunders, for example.

Well I say, park that noise! We need to talk about entitlement and power imbalances. And for the Bridget Joneses in the room, who get so inebriated that they can't look their fellow comrades in the eye for 12 months - we need to discuss why people get so inebriated.

Are they overworked? Burnt out? Do they bear the brunt of bullying and exploitation?

Anecdotally, one may throw back a bottle of wine and not pass out in the bathroom if he or she is in a good headspace. If one has worked in a toxic workplace that person may also throw back said bottle and jump into a swimming pool, fully clothed. But perhaps these themes are better expressed by looking at the various case law, here and abroad.

Worldwide shenanigans
In the Australian case Keenan v Leighton Boral Amey NSW Pty Ltd, an inebriated employee was dismissed for verbally abusing his boss and sexually harassing a colleague. In the case of Vai v Aldi Stores, an employee threw a full glass of beer towards other employees.

Let's look at the UK. In Bellman v Northampton Recruitment the managing director punched an employee so hard he suffered a severe brain injury. The Christmas party kicked off at a golf club but moved on to a hotel bar. At 3am staff discussed a new employee who was supposedly getting paid more than everyone else. The director was annoyed after being questioned, saying "I f***ing make the decisions in this company, it's my business" and proceeded to punch the employee in the face. The Court of Appeal unanimously agreed that the company was liable for the director's actions.

In Bhara v Ikea Ltd, Bhara - the organiser of the party - got in a fight with another employee after he warned him not to drink too much as the other had work the next day. The pair sanitised the fight saying it was a "play fight" and it was "mates having a laugh". Bhara was dismissed for bringing the Ikea brand into disrepute. The UK Employment Tribunal - despite Bhara's flair for event organising - upheld the decision.

What happens when Christmas parties get out of hand. Photo / Getty Images

The there's the sad case of Judge v Crown Leisure Ltd. A manager promised to double an employee's salary in two years, which never came to fruition. It was found that the promise was made in the context of the "convivial spirit of the evening" and didn't amount to a contract.

Homegrown cases
New Zealand's cases are also riddled with problems relating to power imbalance, entitlement, aggression, and arguably micromanagement.

In March 2004 a female lawyer in a senior position was reportedly on leave after allegedly groping a junior male colleague at a work Christmas party. She then made explicit sexual remarks to the group on a microphone.

There's of course the scandal involving Russell McVeagh, which saw a partner sexually harassing interns at the annual Christmas function in 2015. In A v B and another, an employee made a sexually explicit proposal and grabbed A's breast. She successfully claimed that her complaint of sexual harassment wasn't taken seriously.

The 2013 case, Lemon v Idea Services Ltd Northland was quite the sausage-fest - $18 worth of sausages for the Christmas party, that is. On the day of the event the sausages weren't in the freezer - the issue being whether the sausages had been given to Lemon for personal use or whether he was supposed to simply take care of them. Lemon was found to have been unjustifiably dismissed.

In Jackson v Rick Armstrong Motor Court Ltd, Jackson was issued with a formal warning for lateness, after arriving to work 1.5 hours late the day after the work Christmas party. Coupled with other issues, he unsuccessfully claimed constructive dismissal.

In Diggs v Whitcoulls, an employee showed up for work late - this time after a night out partying during the Christmas period. The applicant's breath smelt of alcohol and he "conceded that in his haste to get to work he had forgotten to brush his teeth". He was dismissed, but this didn't stop him attending the Christmas party, go figure.

In Kereopa v Elrich Enterprises Ltd, Kereopa was accused of making private phone calls on his work phone, he was also struck on the left side with a chair at the 2011 Christmas party, which was surprisingly on the back of a truck. These facts weren't the crux of the dispute, but interesting nonetheless.

And last but not least, the case involving Karen Hammond may not have involved Christmas shenanigans but it had to make the list for a variety of reasons. She resigned from her job at NZ Credit Union Baywide, and feeling as if she'd been constructively dismissed she baked a cake with the words "NZCU f**k you" and posted a picture on Facebook.

Human resources secured a copy of the image and distributed it to recruitment companies, advising them against assisting Hammond. NZCU was ordered to pay damages to the value of $168,070 and apologise to her "for the severe humiliation, severe loss of dignity and severe injury to feelings". My god this incredible tale gives me faith in the system and the power of the underdog.

Celebrating new silks

Simon Foote. Photo/Supplied

In contrast, a big congratulations to the outstanding citizens who've made silk. I hope Stephen Hunter, Julie-Anne Kincade, Simon Foote, Janet McLean, Nicolette Levy, Karen Feint, Leonard Andersen, and Jonathan Temm will be celebrating - albeit in a mild and appropriate manner.

If you've got any tips, legal tidbits, or appointments that might be of interest, please email Sasha - on sasha.borissenko@gmail.com