Insights from the ABLA webcast presented by Luis Izzo, Managing Director, and Kate Thomson, Associate Director, Newcastle.
Key takeaway for employers
- Celebrations build culture, reward effort and strengthen relationships, so do not cancel them. Instead, focus on planning.
- The “positive duty” under the Sex Discrimination Act 1984 (Cth) requires proactive, documented steps designed to eliminate sexual harassment and related unlawful conduct, including at events.
- Sexual harassment between employees is prohibited wherever it occurs, so your obligations do not end when the event does.
- Conduct at an event itself will almost always be a work matter but conduct at “kick-ons” and non-work sponsored functions is increasingly being connected to the workplace.
- The case law is still developing on how the traditional out-of-hours tests sit alongside the positive duty, so a proactive approach is the safest one.
Celebrating safely under the positive duty
End-of-year functions, client events and team celebrations are some of the most valuable moments on the workplace calendar. They are also the moments when employers most often call us, either in the lead-up asking how to get it right, or post-event when something has gone wrong.
The positive duty imposed by the Sex Discrimination Act 1984 (Cth) has changed the way employers need to approach these events. Employers must now take reasonable and proportionate measures to eliminate sexual harassment, sex-based harassment and other unlawful conduct, as far as possible. That obligation does not switch off when the party starts (or when the corporate credit card is removed from the bar).
The good news is that you do not need to cancel the party. With the right planning, you can bring your people and clients together, celebrate a big year, and show that you have taken proactive steps to keep everyone safe.
Why celebrations are worth getting right
When legal risks come from several directions, it can be tempting to decide events are simply too hard. Well-run events give businesses a real return:
- Recognition and reward: thanking people for their hard work, celebrating achievements and marking milestones such as long service.
- Connection and culture: giving people a chance to build friendships and camaraderie beyond day-to-day tasks, which strengthens collaboration and engagement.
- Relationships with clients: creating a relaxed setting to build trust and goodwill with the people you work with.
- A stronger employee value proposition: showing that your workplace offers more than a weekly pay packet.
The aim is balance. Employers need to manage risk and keep people safe without becoming so rigid that the fun disappears. With the right framework of clear standards, training and communication. What you cannot do is ignore the risks and hold the party "come what may".
Culture sets the tone long before the event
Events tend to go better in workplaces where people understand the standards expected of them, where concerns are dealt with as they arise, and bystanders feel able to call out poor behaviour. These are natural protections built into the culture.
Events are more likely to go wrong where:
- Problems have been left unresolved. Tired, stressed or disengaged people, unresolved bullying concerns, or organisational changes made without consultation or transparency, combined with alcohol and close proximity, can create prime conditions for an eruption.
- Leaders try to buy loyalty. A lavish party will not fix problems that have built up over the year.
- The event is organised by and for a small group. With up to four generations working together in many workplaces, events need to appeal to and be inclusive of the whole workforce.
- Leadership behaviour has been poor. Leaders whose conduct throughout the year has not matched company values leave people disengaged, and disengaged people are more likely to clash at events.
What the positive duty means for work events
Individuals have always been responsible for their own unlawful conduct, and employers have long understood that they can be vicariously liable for what their employees do at work. In the past, many employers relied on having a policy and some training, and accepted that if something went wrong, there was little more they could have done.
The positive duty changes that thinking. It is best understood through a work health and safety lens. Just as employers must take proactive steps to protect workers from safety risks, they must now work towards eliminating sexual harassment and related unlawful conduct, using reasonable and proportionate measures. If you are not working towards elimination, you are unlikely to be meeting your obligations.
Guidance from the Australian Human Rights Commission points to steps such as training, good policies, communicating expectations, conducting risk assessments and responding properly to reports. For an event, that means asking:
- Do we have a policy, and have people been trained on it?
- What are we communicating to staff before the event?
- Have we done a written risk assessment that identifies the risks of our event and the control measures we are implementing?
- Do people know how to raise a concern if something goes wrong?
Documenting each of these steps matters. If an incident occurs, you want to be able to point to a clear, systematic process: we identified the risks, these were our controls, this is how we communicated our expectations, and this is how concerns are handled.
Where the law intersects with work events
A single incident at a function can trigger several areas of legal exposure:
- Workers' compensation claims for injuries arising in the course of employment.
- Negligence claims where an employer's failure to take adequate care exposes an employee to harm.
- Sex Discrimination Act liability, including personal, accessorial and vicarious liability, and the positive duty.
- Work health and safety duties to ensure the health and safety of workers in connection with your business.
- Unfair dismissal claims, which test whether an employer can lawfully discipline conduct that happens outside normal working hours.
When is out-of-hours conduct a work problem?
The starting point remains the decision in Rose v Telstra Corporation Limited [1998] AIRC 1592. In that case, the Australian Industrial Relations Commission held that an employer ordinarily cannot discipline an employee for conduct outside work unless, viewed objectively, the conduct:
- is likely to cause serious damage to the relationship between employer and employee
- damages the employer's interests, or
- is incompatible with the employee's duties as an employee.
In Rose, a violent altercation between two employees sharing employer-provided accommodation on a work trip was found not to be sufficiently connected to work. The employees were off duty, not in uniform and not engaged in company business, and there was limited publicity of what had occurred.
The clearest rule is this: conduct at the work event itself will almost always be sufficiently connected to work for an employer to act. The harder questions arise once the official event ends.
Kick-ons and after-parties
In Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156, an employee who had made use of unlimited alcohol at a Christmas party went on to another bar in the same hotel complex after the party. There, he grabbed a colleague and kissed them on the lips, and made a comment about another female colleague's underwear. The Fair Work Commission accepted that this was misconduct. However, it found that because the conduct happened after the official event, and he did not interact with the colleague he kissed on a day-to-day basis, there was an insufficient connection to work. His unfair dismissal claim succeeded.
That outcome may well be different today. Where two people have a working relationship, the Sex Discrimination Act now prohibits an employee from sexually harassing another regardless of where it happens, and the employer's positive duty applies.
In the 2022 decision of Keron v Westpac Banking Corporation [2022] FWC 221, an employee touched a colleague inappropriately at employer-funded networking drinks after a conference. That conduct was a valid reason for dismissal. A later verbal altercation with the same colleague at a casino, after the drinks had ended, was found to have a weaker connection to work because it occurred at a different venue. The Commission was also critical of Westpac's planning, including its choice of venue, more than two hours of apparently unrestricted alcohol, and the absence of senior managers to supervise.
The lesson is clear. If you plan to take a firm, zero-tolerance approach to misconduct, you need to show you did everything reasonable to plan a safe and inclusive event. Otherwise, you may not get a sympathetic hearing from the Commission.
Most recently, in the 2026 decision of Bell v Arts Centre Melbourne [2026] FWC 3212, the Commission upheld the dismissal of an employee who pushed a colleague after a Christmas party held at the workplace. Even though the kick-on was not organised by the employer, there was a sufficient connection to work: the employees were only together because of the work event, the incident happened shortly afterwards, and the venue was close to the workplace.
This matters for more than discipline. If there is enough connection to work to justify disciplinary action, there may also be enough to make the employer vicariously liable for the employee's conduct.
Employee-organised events and the trip home
Where employees organise their own unofficial get-together, general misconduct is unlikely to be the employer's business unless one of the Rose tests is met. Sexual harassment is the exception. Because the prohibition applies between employees at any time, the positive duty still applies.
The same applies on the way home. If two employees share a rideshare home from a work event and one sexually harasses the other, that is an employer problem. Employers also have work health and safety duties, so the event location and safe transport options matter. Employers cannot control every decision people make once they leave, but they should have thought about how people will get home.
Your pre-event checklist
Before the event, you should be able to tick off each of the following:
- Policies in place and staff trained on them. A policy alone will not protect you without training, and training alone will not satisfy the positive duty. Review your social media policy as well.
- A written risk assessment. Identify risks such as alcohol, other substances, numbers attending, the mix of people and transport home, then set a control for each. A risk assessment kept in your head is meaningless.
- Consultation. Work health and safety laws require you to consult workers on risk controls. This can be as simple as sharing the measures with your safety committee or staff and inviting questions. Share the assessment with anyone given a role in it, and with senior leaders.
- Clear communication of expectations. Send an all-staff message covering behaviour, dress codes, themes, Secret Santa gifts, photos and social media, and how to raise a concern.
- A designated responsible person. Nominate a manager to stay sober, supervise and make decisions. Consider whether that person should be paid for their time, particularly if they are paid by the hour.
- Active bystanders. Equip people through training to step in early and say something before poor behaviour escalates.
- A clear reporting process. Make sure people know where to go if something goes wrong.
Practical planning tips
- Timing. Think twice about the Friday before Christmas, when people are tired and stressed. A different day, or a daytime event, may lower the risk.
- Start and finish times. Set a clear start and end time and make sure people move on from the venue. Avoid long gaps between finishing work and the event starting, which can lead to people drinking early.
- Ownership. If the party is organised by the social club and not HR, the business must stay involved to make sure its obligations are met.
- Venue. Choose a venue that is inclusive for people of different cultural and religious backgrounds and ages, and not centred around alcohol. A venue with its own trained responsible service of alcohol staff is a real advantage. Visit beforehand to check exits, bathrooms and transport options.
- Seating. Think about the mix of senior and junior staff so no one feels intimidated or vulnerable.
- Food and dietary needs. Ask people ahead of time about allergies, dietary needs and religious requirements, and plan accordingly so there is adequate food.
Managing alcohol and other risks on the night
Alcohol comes up in almost every case. Practical controls include:
- bar staff trained in the responsible service of alcohol, marshals and, where appropriate, security;
- plenty of food, rather than putting most of the budget over the bar;
- drink tickets or other limits on consumption, and a cut-off time for alcohol service;
- a good range of non-alcoholic drinks.
A limited bar tab shows you did not simply open the bar. You cannot stop adults buying their own drinks at a public venue, so a clear finishing time, moving people on and having someone monitor behaviour are your most effective tools. Remember too that some people do not drink but may use other substances, so your risk planning should look beyond alcohol. An event that does not revolve around drinking may be appealing to more of your workforce.
Inviting clients, partners and families
Bringing people from outside the workforce together with your team can strengthen relationships, but every new group adds variables to manage. Guests will not have been given your policies or trained in them, so the protections you have built for staff will not automatically apply to them.
The positive duty also extends to protecting your employees from harassment by third parties. If your event is at a venue open to the public, or includes guests, consider how you will protect staff from inappropriate behaviour by people who are not your employees. Build this into your venue choice, risk assessment and supervision plan, and communicate your expectations to guests where you can.
Family events can work well with the right planning. A large event with partners, alcohol and unresolved workplace tensions carries a much higher risk profile and needs more careful controls.
How ABLA can help you meet your positive duty
If the worst happens, you want to be able to point to a documented list of the steps you took. ABLA's Sexual Harassment and Positive Duty Toolkit is designed to help businesses do exactly that. It includes ready-to-use policies, templates, draft emails and posters, so you can put your positive duty into practice across your business, for the end-of-year celebrations and all year round.
We offer online training courses and a whistleblower hotline service to support a safe and respectful workplace.
Planning your next work event? Contact ABLA today to enquire about our Sexual Harassment and Positive Duty Toolkit and make sure your celebrations come without complications.
This article provides general information only and is not legal advice. Please contact us for advice about your specific circumstances.
