'The workplace is now commonly understood not to end at the office door'
The days of the long lunch are almost over and the “uncontrollable” office party where “anything goes” have been consigned to the annals of history.
It has become increasingly difficult for employers to hold functions without setting strict policies in place beforehand — clearly outlining what is and isn’t acceptable behaviour — while also monitoring individuals during the function.
All sorts of lawsuits can eventuate from unacceptable behaviour at a work function, no matter what your role or stature in the company, as evidenced by the standing down of The Australian newspaper’s long-time editor Christopher Dore after alleged misappropriate behaviour at a function just before Christmas.
“All employers should have a drug and alcohol policy that clearly sets out the employer's expectations regarding drugs and alcohol in the workplace, as well as articulates the consequences of breaching the policy,” Catherine Stephens, associate director of employment law at BlueRock, said.
“The policy should reflect a drugs and alcohol clause in the employment agreement. For employers in high-risk sectors where zero drugs/alcohol is required and random testing applies, the policy and contractual clauses should clearly set out the requirements and consequences including in relation to testing.”
Even attending drinks after work with colleagues can cause issues if the behaviour is deemed not appropriate. Individuals need to respect personal boundaries, try to keep conversations professional or at least courteous and ensure that they respect the views of others, even if they don’t agree with them.
“These policies should extend as far as the workplace extends,” Stephens said.
“The workplace is now commonly understood not to end at the office door. The workplace includes client venues, events venues, bars, restaurants, cafes, parks, airplanes or any space in which employees are involved in work or work-related activities.”
The difficult part is when it comes down to two individuals making allegations. This falls into the “he said, she said” argument and the Hearsay Rule of the Evidence Act is difficult to enforce, as we saw with the Brittany Higgins court case.
“Enforcement depends on the industry,” Stephens added. “Some industries require random testing and use this as an enforcement tool. For employers outside those industries, if an employee appears alcohol- or drug-affected, they should be sent home from work on personal leave until they are fit for work.
Employers should consider whether an employee in such a condition should be permitted to drive, or if they are to be sent home alone, she said.
“Enforcement really depends on the scope of powers set out in the applicable policy. Employees are required to follow the employer's lawful and reasonable directions.
“It may be reasonable for a truck driver to be required to provide a negative blood alcohol reading prior to driving, however, it may not be lawful and reasonable to require an office worker who has had no previous issues to provide the same sample.”
The reality is that all employers have a responsibility to ensure the safety and wellbeing of employees in the workplace.
“The use of drugs and alcohol at work can have serious consequences for employees, ranging from endangering themselves and/or other to reduced productivity and reputational damage to the business,” Margaret Goody, managing director of Akyra Strategy and Development, said.
“As such, it is critical for employers to ensure that they have clear guidelines and policies in place regarding drugs and alcohol in the workplace.”
One challenge is whether or not such policies should be extended to out-of-office contexts which are still work-related such as work functions and parties.
While a ban on alcohol at work events may be unpopular with some, there are a number of legal considerations to take into account.
“The potential for employers to be held liable for the conduct of intoxicated employees under the concept of vicarious liability, as well as the recently introduced positive duty to prevent sexual harassment mean employers should seriously consider making work-related events alcohol-free — or at least limit the amount of alcohol made available — in order to protect both workers and themselves,” Goody said.
While it is advisable for workplaces to have clear policies relating to drugs and alcohol, enforcement of such policies can sometimes prove difficult, she said.
“For example, random or scheduled drug and alcohol testing can lead to legal complications if not administered correctly – as well as the potential for an unfair dismissal claim if the process if not managed precisely.
“Drug and alcohol policies should be reviewed – and if necessary updated - regularly, and any policy changes should be clearly communicated to all employees.”
