Question

If a company provides alcohol for their staff, on the understanding that they are free to help themselves after 5pm, would the company be held liable should an employee drive home over the legal limit and be involved in an accident or be fined by the police, even if they had advised all employees that each individual is responsible to limit their alcohol consumption?

Answer

Under the OHS Act, it is likely that an employee in these circumstances will be held to be either at work or work will be held to be a causative factor if he is injured. If he were walking home and fell over, for instance, his injury could give rise to a successful workers compensation claim and a common law claim for damages ( in most States and Territories) if the injury was serious enough.

Employers must ensure that alcohol is used responsibly and policies and procedures are in place to prevent people using it excessively. If an employee consumes excessive alcohol at a work approved function, the employer should ensure the employee is safely transported home.

Although this sounds like an unreasonable burden upon employers there is significant case law that points to the risks employers take by permitting it. In OHS law, alcohol is just another risk that employers must control. As NSW has a reverse onus of proof, the employer will be deemed to be liable and must prove that they took all reasonable and practicable steps to avoid the risk.

Steps from here:

1. Always supervise alcohol use.
2. Never permit a person to re-commence work who has consumed alcohol.
3. Develop workplace codes of conduct (what is and is not acceptable conduct at work) and policies and procedures – the latter directed at alcohol and drug use and the expectations of the business and response to such use.
4. Enforce the codes, policies and procedures.

I know it goes without saying, but most sexual harassment and bullying occurs following alcohol use. This exposes the company further.

Keeping these points in mind, the company is unlikely to be liable at law unless, for instance, it can be shown that a death arising out of an employee’s driving (whilst affected by alcohol consumed at a work approved function) arose from the reckless conduct of a manager. For example, the manager participated in a drinking game with the employee at a work function, observed and knew him to be drunk and laughed when he said he was driving home.

Far fetched? Sadly no! Too often work cultures condone excessive alcohol consumption along with the risky behavior that comes with it. Follow the above rules and the risks are gone…