Publication
The holiday season is fast approaching and workers across the country are drawing names for office gift exchanges and receiving invitations to staff holiday parties. But as the holiday cheer begins to flow, employers will face a number of risks that can be contained with some extra planning. We would like to offer our thoughts on keeping your workplace merry and bright this season.
ON THE FIRST DAY OF CHRISTMAS MY LAWYER SAID TO ME...
Be inclusive and keep holiday festivities non-denominational. Human rights legislation in each of the provinces calls for employers to keep their workplaces free from religious discrimination. This, in our view, includes planning activities that do not exclude certain employees based on their religion.
A 2001 decision of the B.C. Human Rights Tribunal illustrates the extent to which some adjudicators are prepared to apply this duty.[1] Mr. Jones, a Jehovah's Witness, worked as a merchandiser at a Shoppers Drug Mart store in Victoria, B.C. Because he did not believe in celebrating Christmas, he had told his employer that he would continue to merchandise the store's Christmas stock, but would not participate in any Christmas decorating, which he viewed as a form of celebration. A dispute arose between Mr. Jones and Shoppers Drug Mart when Mr. Jones refused to display poinsettias. The parties disagreed about whether the poinsettias, which were for sale, were merchandise or decorations. Mr. Jones' employer took his refusal to be insubordination and gave him an ultimatum: put out the poinsettias or leave. The Tribunal held that the ultimatum amounted to constructive dismissal and Mr. Jones' human rights complaint was successful. He was awarded compensation for loss of income in addition to $3,500 for injury to his feelings, dignity and self-respect.
- Non-denominational holiday activities promote inclusivity and reduce the employer's risk of attracting a human rights complaint.
- Try to plan company social events to take place outside regular work hours.
- When company social events are held outside regular work hours, those who attend should not be paid while the activity is taking place.
- Make it clear that attendance is entirely voluntary and that non-participation will not be noted by the company in any way.
MOCKTAILS, ANYONE?
Managing the risks of social host liability is an increasing concern for employers. Employers owe a duty to employees to keep them safe from harm. Courts have held that an employer can be liable to its employees for damages resulting from accidents related to alcohol consumption at company social events.
When alcohol is served at company functions, employers may also be liable for losses suffered by third parties such as passengers and other road users, in the event of a car accident.[2] Exceptionally, this is not true for the Province of Quebec where the Automobile Insurance Act[3] creates a "no fault" regime that provides that any person who suffers bodily injury in an automobile accident will only be compensated by the Société de l'assurance automobile du Québec regardless of who is at fault.
Elsewhere, in the cases of Jacobsen v. Nike Canada Ltd.[4] and Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc.,[5] employers have been held partially liable for the injuries of employees injured in car accidents after drinking at company social events. The Plaintiff in Jacobsen worked for Nike as a warehouseperson. Prior to the incident that prompted the lawsuit, a company supervisor supplied the Plaintiff and his co-workers with beer. After work, the Plaintiff went to two nightclubs where he continued to drink. Driving home, the Plaintiff was involved in a car accident that rendered him a quadriplegic.
The Court in Jacobsen found the employer to be partially liable for the Plaintiff's injuries because an employer is required to safeguard its employees from unreasonable risks. In order to insulate itself from liability, the Court said that an employer who provides alcohol to its employees must take affirmative steps to prevent the foreseeable risk that someone could be injured by impaired driving.
In Hunt, the Plaintiff became inebriated at a Christmas office party. Prior to the office party, the employer had announced a general policy that the company would pay for taxis if an employee felt incapable of driving. During the party, the employer noticed the Plaintiff's drunken state and offered to call her husband to come and pick her up. The employer took no further steps to ensure that she got home safely. After the office party, the Plaintiff and some other employees continued to drink at a pub. The Plaintiff was injured when she attempted to drive home.
In August of 2002, the Ontario Court of Appeal overturned the trial decision in Hunt and ordered a new trial based on errors of law committed by the trial judge. The Court of Appeal's reasons for ordering the new trial do not change the law on employer liability for reasonably foreseeable harm arising from its supply of alcohol to employees.
The following are some suggestions that will minimize the risks associated with drinking alcohol at social functions:
- Host events at a hotel or a restaurant where a commercial host will be primarily responsible for providing qualified staff to serve and monitor the consumption of alcohol. Holding a social function at a commercial establishment will not free an employer from its duty of care but will enhance control over the consumption of alcohol and enable it to share potential liability.
- Restrict and monitor the amount of alcohol consumed by each guest. For example, use a drink voucher system or hire a bartender rather than offering a self-serve bar.
- Close the bar one hour before the planned end-time of the activity.
- Provide non-alcoholic refreshments.
- Provide transportation or taxi vouchers to party guests for their trip home. In view of the courts' decisions in Jacobsen and Hunt, we recommend that employees be provided with more than one taxi voucher if it is foreseeable that they will travel to another venue and continue drinking before heading home.
- Ensure that you have host liability insurance coverage.
- Develop and implement a policy for company social events.
GONNA FIND OUT WHO'S NAUGHTY AND NICE
Whether it takes place during regular work hours or after and whether it is held on site or off, the company's holiday party is a work-related activity and what goes on there is likely to have the same legal repercussions as any other workplace conduct. Even under the mistletoe, it is considered workplace conduct that may one day be scrutinized in the cold light of litigation.
The Ontario Court of Appeal, in assessing the conduct of an executive employee who was terminated for sexually harassing female staff, commented that "it would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment."[6] In that case, much of the sexual harassment had occurred at hotels during business conferences and meetings that had a social component.
Several consequences flow from the courts' approach. First, an employee may be disciplined for his or her conduct at a company social event. Second, the employer may face a human rights complaint from an employee who was the victim of harassment at a company social event. Since May 2004, Quebec employers also face the potential for a complaint of psychological harassment under the Act respecting labour standards[7] which states that employees have a right to a "work environment" free from psychological harassment. Although no decisions have yet been rendered under this new provision, we anticipate that the concept of "work environment" will receive a broad interpretation that would include social events. Finally, a victim of harassment may claim that he or she has been constructively dismissed because the incident of harassment has made the workplace too intolerable for him or her to remain there.
Occasionally, office party conduct may be so egregious that a single incident would warrant an employee's dismissal or would amount to constructive dismissal of the victim. More commonly, holiday party conduct is one incident in a pattern of ongoing harassment. Employers have a duty to address harassment in the workplace and must not be dismissive of an incident of harassment that occurs at a work-related social event.
Additionally, injuries occurring at company-organized social events could be compensable under provincial occupational health and safety insurance regimes. This is especially true of injuries occurring at an event held at the workplace or during regular working hours.
Employers can reduce the risk of liability related to employee conduct at social events by treating the event as continuous with the workplace. To that end, we offer these recommendations:
- Be aware of employees' conduct at social events and follow up on complaints of harassment.
- Place controls on alcohol consumption.
- Send the message that the holiday party is a work-related activity. Implementing and circulating a policy for company social events will communicate to employees that the event is continuous with their workplace.
- Ensure that your policy on harassment in the workplace states that the policy applies during social events.
With these thoughts in mind, we wish you happy holidays and safe celebrations this year.
[1]. Jones v. C.H.E. Pharmacy Inc. et al , 2001 BCHRT 1.
[2]. Childs v. Desormeaux (2004), 239 D.L.R. (4th) 61 at para. 76 (Ont.C.A.): a social host may be implicated in the creation of a risk to users of the road, especially if the social host knows that an intoxicated guest is going to drive and does not make reasonable efforts to prevent the guest from driving.
[3]. R.S.Q., c. A-25.
[4]. (1996), 133 D.L.R. (4th) 377 (B.C.S.C.).
[5]. (2002), 60 O.R. (3d) 665 (Ont.C.A.).
[6]. Simpson v. Consumers' Association of Canada (2001), 13 C.C.E.L. (3d) 234 at para. 61 (Ont.C.A.).
[7]. R.S.Q., c. N-1.1.
The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.
For further information, please contact one of the following lawyers:
Montréal
Marie-Hélène Jetté (514) 847-4650
mjette@ogilvyrenault.com
Manon Savard (514) 847-4520
msavard@ogilvyrenault.com
Ottawa
Mary J. Gleason (613) 780-8635
mgleason@ogilvyrenault.com
Québec
Jean Houle (418) 640-5036
jhoule@ogilvyrenault.com
Toronto
David J. Bannon (416) 216-3907
dbannon@ogilvyrenault.com
Anne K. Gallop (416) 216-4038
agallop@ogilvyrenault.com
John B. West (416) 216-3976
jwest@ogilvyrenault.com
Vancouver
Delayne M. Sartison (604) 806-3851
dsartison@ogilvyrenault.com
Matthew Cooperwilliams (604) 806-3852
mcooperwilliams@ogilvyrenault.com
Personnes-ressources
Marie-Hélène Jetté
Montréal
514.847.4650
mjette@ogilvyrenault.com
Profil
Manon M. Savard
Montréal
514.847.4520
msavard@ogilvyrenault.com
Profil
Mary J. Gleason
Ottawa
613.780.8635
mgleason@ogilvyrenault.com
Profil
Jean Houle
Québec
418.640.5036
jhoule@ogilvyrenault.com
Profil
David J. Bannon
Toronto
416.216.3907
dbannon@ogilvyrenault.com
Profil
Anne K. Gallop
Toronto
416.216.4038
agallop@ogilvyrenault.com
Profil
John B. West
Toronto
416.216.3976
jwest@ogilvyrenault.com
Profil
