Merry Christmas #MeToo

December is just around the corner, so the Office Christmas Party season has officially begun! Since there is no surefire prescription for an incident-free Christmas party, employers should start taking proactive and precautionary steps now for ensuring adequate supervision and control of their events.

The headlines these past few months prove beyond any doubt that incidents of psychological harassment – including sexual harassment – can occur in any type of work environment. Situations that could potentially lead to complaints of this nature are not unheard of at office Christmas parties … far from it!

Employers must therefore be especially vigilant, regarding not only situations that could be characterized as psychological or sexual harassment as defined by law or company policy, but also regarding any behaviour that, while not characterizable as harassment, is nonetheless inappropriate or undesirable in the work environment.

Psychological harassment

Quebec’s Labour Standards Act¹ provides, in a section adopted in 2002, that every employee has the right to work in an environment free from psychological harassment. There are five criteria for conduct to be characterized as psychological harassment:

1. vexatious behaviour in the form of verbal comments, actions or gestures;
2. the behaviour, comments, actions or gestures were hostile;
3. the behaviour, comments, actions or gestures took place repeatedly;
4. the employee’s dignity or psychological or physical integrity was affected;
5. the vexatious behaviour resulted in a harmful work environment for the employee.

It should be noted that in some cases, a single incidence of serious misconduct that has an ongoing harmful effect on the employee may be characterized as psychological harassment.

Where psychological harassment is concerned, the legislation requires employers to take all reasonable means to prevent such a situation from arising and to put a stop to it upon becoming aware of it. This two-pronged obligation is not limited to the physical confines of the workplace, and employers must be doubly vigilant during employer-organized activities outside the workplace … and any such activities at this time of year are bound to be Christmas parties! Thus, a single instance of serious misconduct at a company Christmas party may result in the employer having to defend itself in court following the filing of a complaint for psychological harassment.

Quebec case law provides some examples of complaints alleging psychological harassment during Christmas parties organized by an employer.

First of all, in the matter of S… H…², Quebec’s labour relations board, the Commission des relations du travail (“CRT”)³ upheld a complaint of psychological harassment based on a single instance of serious misconduct of a sexual nature at a employer-organized Christmas party. A representative of the employer, a pub owner, who was in a position of authority over the complainant, a waitress, touched her breast while slipping an ice cube under her sweater. According to the CRT, the employer had clearly failed to fulfill his obligations, and his alleged consumption of alcohol by no means liberated him from those obligations. In addition, the CRT was of the view that such sexual touching was not a minor annoyance or momentary discomfort that the passage of time would assuage so that a normal superior/employee relationship could resume⁴. On the contrary, this unwanted touching had an ongoing harmful effect on the complainant, forcing her to leave her employment at the establishment in question.

Furthermore, in the matter of Sécuritas Canada ltée⁵, the CRT upheld the dismissal of a wrongful-dismissal complainant, on account of alleged sexual harassment at a company Christmas party. The complainant, a manager of teams of security guards, took the following liberties with a female security guard:

• told her she was pretty and sexy;
• asked her if she wasn’t tempted to “be single again”;
• boasted of his “sexual prowess”;
• told her that “men of his age were a lot better in bed than young men in their twenties, because” he, “for one, had a lot more experience in bed”;
• once on the dance floor, took her hand and placed it on his crotch, and then lifted up her skirt.

The employer’s power to intervene in psychological harassment and other situations

When employees agree to attend a party organized by their employer outside of normal working hours, they thereby consent to attend as part of their employment and to participate in the party as employees. That being the case, the employer has the right to sanction any misbehaviour at the party, even though the impugned conduct does not occur in the workplace per se, or during normal working hours.

There are numerous examples in the case law of inappropriate if not indecent behaviour at Christmas parties, and they confirm that it is incumbent on employers to sanction such behaviour by imposing appropriate disciplinary measures. Among those examples are the following:

• The imposition of a three-day suspension for having thrown (and broken) a chair a dozen feet or so, and threatened to “break the legs” of a restaurant manager if he didn’t find the employee’s coat, was upheld. The arbitrator found this to be a flagrant illustration of a total lack of civility⁶.
• An arbitrator considered that a five-day suspension for having lifted up the dress of the firm’s receptionist and proclaiming “See how great her legs are!” was justified, notwithstanding the fact that the employee in question had consumed seven or eight beers⁷.
• An arbitrator upheld a two-day suspension imposed on an employee for having said “in jest” at a Christmas dinner organized by his employer that “the bigwigs in the Transport Department got performance bonuses, so now there’s no money to buy winter boots for unionized employees”⁸.
• The dismissal of a rotisserie deliveryman for having slapped a colleague with whom he had had a stormy romantic relationship, causing her to lose her balance and break her glasses, was upheld⁹. 

In this last case, Royal Vézina inc., arbitrator Francine Lamy explained, in a decision rendered in 2017, that the intrinsic seriousness of an employee’s misconduct at a Christmas party was no less than it would have been had such misconduct taken place in the workplace during normal working hours. The old case law to the effect that a fault committed at a social event is less serious than one committed in the workplace is in her opinion no longer applicable¹⁰.

A few words of advice

In order to avoid any psychological harassment situation or other inappropriate behaviour at your Christmas party, as an employer you should:

• Prevent:
  • Remind your employees of the existence (and content!) of your policy on harassment and of their general duty to behave civilly and with respect;
  • Limit alcohol consumption during the party (in any event, employees remain responsible for their behaviour and alcohol consumption doesn’t give them a free pass to harass colleagues or otherwise behave inappropriately);
  • And cannabis? Verboten! Even though the federal government wants to legalize it, that has not yet happened, so your policy on drug use fully applies!
• Be vigilant:
  • During the party, make sure employer representatives are on the alert (and sober!);
• Take charge:
  • If a situation that could be termed harassment or any other inappropriate behaviour occurs, intervene at once;
  • If a situation is reported to you following the party, you must investigate, even if it occurred off the premises and after the party ended;
  • Apply the appropriate disciplinary measures.

In sum, when it comes to harassment don’t hesitate to take a “zero tolerance” approach, whether in the workplace or at your annual Christmas party. Your organization will then be supporting, in its own way, the #MeToo movement.