The Twelve Days of Christmas – preparing your business for the festive season

Dec 2020 | Workplace Advisory

With the count-down to Christmas well and truly upon us, it is important that businesses prepare for the many unique employment challenges posed by the festive season.

On the first day of Christmas, my employee gave to me…a workers’ compensation claim

Christmas decorations around the workplace can pose dangers, including risks of falls from height while hanging decorations, trips and falls over wires used to power lights, and electric shocks from cheap electrical novelties.

Employers should take a proactive approach to identifying any hazards or risks posed by Christmas decorations and take appropriate measures to eliminate hazards and reduce risks to workers as far as reasonably practicable.

On the second day of Christmas, my employee gave to me…a short staffed office

If your business does not shut down over the Christmas/New Year period, it is important that employees submit leave requests early so that management can plan required staffing levels over the festive period.

If refusing an employee’s request for leave, it is critical to carefully consider the reasonableness of the refusal, particularly bearing in mind the employee’s religion and family responsibilities.

On the third day of Christmas, my employee gave to me…a social media situation

Ill-advised social media posts are becoming a common reason for disciplinary action, with a pronounced increase in such posts occurring over Christmas party season.

If your business does not already have in place a social media policy, now is the perfect time to introduce a policy which clearly spells out the expectations of staff, and the potential consequences of any breach.

Prior to work social events, it is important to remind staff that photographs should not be posted to social media unless all persons in the photograph have consented.

On the fourth day of Christmas, my employee gave to me…a bullying claim

The festive season can be a stressful time, both in the work and in the home environment. However, being busy or stressed is not an excuse for bullying behaviour.

Staff should be reminded to treat one another with courtesy and respect, and managers should be reminded to ensure that workloads and deadlines remain reasonable and achievable.

On the fifth day of Christmas, my employee gave to me…a ‘sickie’

Employees taking ‘sickies’ during December and January is a widespread problem – sometimes because employees are genuinely run-down and unwell, sometimes for self-inflicted reasons, and sometimes because employees would simply rather be at the beach.

It is prudent to review your employment contracts and policies to ascertain the circumstances in which a medical certificate may be requested. Many policies allow for a medical certificate to be requested for any absences falling on a Monday, Friday or the day after a public holiday.

On the sixth day of Christmas, my employee gave to me…a refusal to take annual leave over the shutdown period

Many Awards and enterprise agreements allow employers to mandate the taking of annual leave over a shutdown period. If your employees are covered by an Award or enterprise agreement, it is important to ensure you have followed the requirements for provision of appropriate notice in advance of the shutdown period.

If your employees are not covered by an Award or enterprise agreement, review your policies and employment contracts to ensure that you will not be in breach of contract or policy by directing an employee to take annual leave. As a general rule, a direction to take annual leave will only be valid if the direction is reasonable.

On the seventh day of Christmas, my employee gave to me…an employee under the influence

Most employment contracts and workplace policies make it clear that employees are not permitted to perform work whilst under the influence of alcohol or drugs.

Even if your policies and contracts are silent on this point, employers have work health and safety duties to ensure the safety of workers and the general public.

If you suspect an employee is unfit for work and the employee declines to go home voluntarily, it is appropriate to send the employee home on full pay and to address any disciplinary issues at a later time (noting it is unwise to commence a disciplinary process while the employee remains under the influence).

On the eighth day of Christmas, my employee gave to me…a sexual harassment claim

Employees should be reminded that unwelcome conduct of a sexual nature will not be tolerated, and that excessive consumption of alcohol is no excuse for inappropriate behaviour.

Employers should also be alert to the possibility of sexual harassment claims arising from an employer’s choice of venue or entertainment. ‘Adult’ entertainment venues will seldom be an appropriate venue for a work or client event. Likewise, comedians or other entertainers who use racist, sexist or otherwise offensive material in their act should be avoided for the purpose of work functions.

On the ninth day of Christmas, my employee gave to me…a DUI and a written-off car

If alcohol is being served at a work function, it is prudent to ensure that responsible service of alcohol is practised and that attendees who have been drinking do not drive home.

While there is ordinarily no obligation on an employer to provide transport, the cost associated with providing transport should be weighed against the cost of sick leave and reduced productivity if an employee suffers an adverse event. Further, when functions occur during work hours, it is important to remember that injuries suffered on a journey between the workplace and home may be covered by workers’ compensation.

Finally, it is important to bear in mind that if an intoxicated employee has an accident in a work supplied vehicle, the motor vehicle insurance policy may not respond.

On the tenth day of Christmas, my employee gave to me…a request for domestic violence leave

As family tensions have a tendency to build up over the festive period, employers may experience an increase in employees seeking access to family and domestic violence leave.

Under the National Employment Standards, all employees (including casual and part-time employees) are entitled to five days of unpaid family and domestic violence leave per year.

Employers are entitled to request evidence of the need for family or domestic violence leave, which may include a statutory declaration from the employee or documents issued by the police, by a court, or by a family violence support service.

On the eleventh day of Christmas, my employee gave to me…a lack of productivity

It is not uncommon during the festive season for employees to present to work while fatigued or hung over.

Where this causes a risk to health or safety (e.g. due to a requirement to operate heavy machinery), it is prudent to send the employee home and to consider whether a warning or other disciplinary action would be appropriate.

Where an employee’s fatigue or hangover does not pose any risk to health or safety, but results in a marked reduction in productivity, it is unlikely that an employer will have the power to send the employee home. It would be appropriate, however, to consider disciplinary action against the employee. In this regard, the Fair Work Commission has held that employers are entitled to expect that employees will take reasonable steps outside of work hours to ensure they are fit for work during work hours. Where an employee deliberately embarks on a course of conduct outside of work hours which will render them unfit for work, there may be grounds for disciplinary action. 

On the twelfth day of Christmas, my employee gave to me…an abandonment of employment

Occasionally employees fail to return to work after a shutdown period.

If an employer believes that an employee has abandoned his or her position, it is important to follow any Award or enterprise agreement provisions which deal with abandonment of employment.

If the employee is not covered by an Award or enterprise agreement, it is ordinarily necessary to demonstrate the following before taking any disciplinary action based on an abandonment of employment:

  • The employee has been absent from work for in excess of three days without any explanation (noting that an explanation for the absence, even if not accepted as a reasonable explanation by the employer, will ordinarily mean there has been no abandonment); and
  • The employer has made attempts to contact the employee by telephone, email and any other reasonably available means.

Workplace Advisory Partner Lara Radik can provide assistance should issues arise over the festive season and into the new year.  Contact Lara directly by emailing her (click here) or contacting her on (07) 3000 8441.


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