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Christmas parties - 'tis the season
It would make a great line for one of those Tui billboards: "I don't think I'll drink at the Christmas party this year".
And here we are again - about to embark on the "silly season" of outrageous celebration in the workplace - and amongst those who will be celebrating most heartily are the employment lawyers, for whom this season represents a very busy time of year.
Office functions at this time of year have historically lent themselves to colourful - and sometimes tragic - employment problems.
In 1996 an employee in an aluminium smelter was dismissed after grabbing and making sexually aggressive remarks to a colleague at a company's "beer and cheese" evening.
In 1999, a security guard ended up having sexual intercourse with a workmate (who was not his wife) in the toilets in his employer's VIP lounge.
And in 2000, an investment banker was sentenced to two years' imprisonment after setting fire to a colleague's costume, leading to his death, and to severe injuries for a woman who was with him at the time.
So what can we learn from all of this experience?
Some employers in the United States have reached the conclusion that Christmas parties simply lead to more potential liability than they are worth. As an alternative, some companies have offered to pay their employees a special "bonus", representing the cost of what they would otherwise spend on a Christmas function. Other organisations believe, however, that a social celebration is an important part of corporate culture - and to forego it because of liability concerns would be to sacrifice a part of the organisation's identity. For those employers in New Zealand who think along these lines, a recent decision of the Employment Relations Authority may sound a cautionary warning.
The facts of Bearman v Zintel Communication Ltd (Unreported, Employment Relations Authority, Auckland, 13 October 2003) are, on any view, a little bit bizarre.
The story of the case starts at a Christmas function held by the employer. Amongst the partygoers was a male employee - Alan Jamieson. Things went wrong when Jamieson's girlfriend, Renee, arrived to pick him up - and found him in a compromising position in a toilet stall with a co worker, Gillian Bearman.
It appears that a rather unpleasant exchange followed, during which Jamieson threatened to jump into the water outside the Tamaki Yacht Club - and the Police were called - although Jamieson and Renee managed to leave before they arrived.
Bearman's night also took a turn for the worse following Jamieson's departure. She left the party to go to a night club - where she consumed a drink laced with GHB, following which she became unconscious and had to be hospitalised.
These somewhat unusual events became the employer's problem when, shortly after the Christmas party, Jamieson made a complaint that Bearman had squirted "a clear liquid from a syringe" into one of his drinks - and into the drinks of several different people.
As one might expect, the employer was not exactly impressed with this whole situation. It confronted Bearman with the allegations - and reached the view that she had committed serious misconduct by bringing drugs to a workplace function. Bearman was accordingly dismissed from her employment.
Interestingly, after Bearman had been dismissed, the employer sought and obtained statements from other staff - and accessed Bearman's computer to find an email from her indicating that she did, indeed, use illicit drugs (albeit apparently on a recreational basis outside of work).
Bearman claimed that her employer had not undertaken an appropriate investigation before concluding that she had committed serious misconduct. The Employment Relations Authority agreed. The Authority was concerned that the employer had not given much, if any, weight to the possibility that Jamieson's complaint might have been motivated by a desperate desire to rescue his relationship - by attributing his unacceptable behaviour at the Christmas party to having his drink spiked.
Further, the Authority found it odd that the employer had not taken account of the fact that no other employees had made complaints about being drugged - nor was there any evidence of employees other than Jamieson suffering ill effects from the supposed consumption of Bearman's illicit drugs. On this basis, the Authority concluded that Bearman had been unjustifiably dismissed.
That was not, however, the end of the matter.
The Authority held that, in considering remedies to be awarded to Bearman, it was entitled to take account of the information which the employer obtained following Bearman's dismissal. It reached the view that Bearman did, in fact, take drugs to the Christmas party. Further, it concluded that this behaviour was so blameworthy that Bearman should be disentitled from obtaining any remedies from her employer.
In short, therefore, the Authority concluded that the employer's investigation had been unfair because it had not given appropriate consideration to what appeared to be some possible alternative explanations for Jamieson's complaint. On the other hand, however, that point became practically irrelevant for Bearman, because of subsequent information which confirmed that she had, in fact, brought illicit drugs to a workplace function.
This case perhaps serves as a reminder that a combination of festive workmates and alcohol can often lead to difficult workplace problems for an employer. An employer could - and certainly should, attempt to be vigilant to prevent any such unfortunate mishaps occurring. History would suggest, however, that it may be very difficult for it to do so.
