With the Christmas season fast approaching, we have here a selection of more recent case digests from FirstPoint powered by The Australian Digest which deal with some of the legal pitfalls encountered during this holiday time.

Employees and Christmas parties or events:

Where a company Christmas party was conducted in a hotel's function room and closed at 10pm, subsequent attendee behaviour in the hotel's public bar and at a taxi rank, which was of a nature that could constitute harassment, did not contravene the Sex Discrimination Act 1984 (Cth), s 28B(2) or engage s 160(1)(b): Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 , (2015) 250 IR 27.

Where an annual Christmas party for employees and families was held on licensed premises, being  a ship and landing place run by first defendant; involved a day trip excursion with alcohol, lunch and water entertainments; and the plaintiff employee was injured as result of an assault by a passenger from another group, the first defendant operator and the second defendant employer were not in breach of their duty of care as it was not a  failure of the duty not to have crowd controllers or security personnel in addition to crew : Packer v Tall Ships Sailing Cruises Aust Pty Ltd [2014] QSC 212 , [2014] Aust Torts Reports 82-179, 66 AILR 300-183.

Where the appellant employee was hired out by his employer to a shopping centre to play the role of Santa Claus and was assaulted on his way to the change rooms after his shift ended, the employer’s obligation was to exercise reasonable care, not to warrant his safety and the provision of a safe system of work did not involve the provision of a security guard: Bainbridge v James [2013] VSCA 12;  (2013) 39 VR 457.

A rail employee, whose work involved rail safety work, was correctly dismissed for breaching the employer's alcohol and drug free workplace policy when he failed a random breath test taken at work the day after an evening work Christmas party at which he had consumer alcohol: RailCorp v Transport Appeal Boards [2009] NSWSC 195.

Cases involving the Christmas period and notices etc:

A potential objector, whose lawyers were on holidays over the Christmas period, failed to file an objection to a development within time. The court held that the objector was entitled to review the council's grant of the development consent, as by choosing to advertise over the Christmas holiday period and adopting the minimum timeframe possible, the difference of one day could have made a difference to the public's awareness of the development. Noncompliance by the applicant meant he had breached the requirements of the relevant legislation: Woibo v Cook Shire Council [1999] QSC 349.

The defendant faxed a payment claim to the offices of the plaintiff company during the week when the company was closed for Christmas holidays. The plaintiff contended that, in effect, personal service was required and therefore the claim was not served on the day it was faxed. The court held that as the defendant sent the payment claim by facsimile on a business day, it was served on that day, and that day counted in the computation of the time limit for the plaintiff to provide its payment schedule. Personal service was not required in the circumstances: Taylor Projects Group Pty Ltd v Brick Dept Pty Ltd [2005] NSWSC 439.

Although administrative expediency may mean that the determination of child care benefit percentage should take effect from a predetermined time as provided for in Centrelink's policy, Parliament specified that it take effect from the date of the occurrence of the event (in this case, 25th December). There was nothing in the relevant legislation that provided that the date of effect could not be a public holiday such as Christmas Day: Kerferd v Department of Education, Employment and Workplace Relations [2008] AATA 446; (2008) 72 ATR 515; 102 ALD 421.

Best wishes from the Cases team for a safe and happy holiday.

Diane Champion

Senior legal editor

Cases team