Silly season antics – Do you have policies in place?

September, 2014

By Clayton Payne

A recent decision of the Queensland Supreme Court serves as a timely reminder of what can go wrong at work Christmas parties.

In Packer v Tall Ships Sailing Cruises Aust P/L & Anor [2014] QSC 212, his Honour Mr. Justice Jackson dismissed the Plaintiff’s claim that his employer breached its duty of care to him, albeit finding that such a duty of care was owed.

The Plaintiff’s employer, Commercial Waterproofing Services (CWS), held a Christmas party on a day cruise operated by Tall Ship Sailing Cruises Australia Pty Ltd. On several occasions, a group of patrons were loudly swearing near the Plaintiff and his family. The Plaintiff requested that the patrons lower their voices as there were numerous families aboard, and upon making this comment, the Plaintiff was struck by the assailant in the side of his face.

The court found that CWS owed a duty of care to the Plaintiff as his employer; however, it was found that CWS was not in breach of that duty. Mr Justice Jackson adopted the reasoning in Kitto J’s judgment in ACI Metal Stamping & Spinning Pty Ltd v Boczulik [1964] HCA 26, who held:

the duty of care is to take all reasonable precautions against injury to the servant in the court of his employment…which extends beyond the period of work to every situation in which the master sustains the character of master towards the servant…but if.. the master gratuitously presents his servant with a theatre ticket, he is not master in respect of the servant’s exercise of the liberty the ticket gives him in the theatre and accordingly he does not owe the servant a duty of care”… (at [93]).

The court’s ruling in favour of CWS was based on the assumption that CWS had no control over the other passengers on the cruise and, that in the circumstances it was “unrealistic” for CWS to reasonably foresee that a boisterous group of individuals could assault one of their employees. Further, there was no evidence to demonstrate that CWS was made aware that an apparent risk could arise from the Plaintiff’s request.

Conclusion

The employer, in this instance, escaped a finding that it breached its duty of care. That said, the decision may have been different if the Plaintiff was assaulted by a fellow employee. Noting that the “silly season” is just around the corner, employers should be mindful of having policies in place dealing with appropriate workplace behaviour, and ensuring that employees are given appropriate education on those policies.

Contact Mills Oakley

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Ross Levin | Partner
Melbourne
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E: rlevin@millsoakley.com.au

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Sydney
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Melbourne
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E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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