Tis the season to be jolly – Office holiday party season, that is!

Office holiday parties are a wonderful time for employers to highlight employees’ accomplishments, thank them for their contributions to the company and give them a chance to mix and mingle in a more relaxed setting.

Here are a few reminders to help prevent unfortunate incidents and ensure that these events go off without a hitch. 

First, although holiday parties are typically held outside of the normal workplace and working hours, employees and employers are still bound by certain obligations and can be held liable if they fail to comply. Let’s review the general principles that apply to employers and employees at all times.

With respect to employer obligations, note that employers have an obligation to protect their employees’ health, safety, dignity and integrity.¹ Employees, on the other hand, must continue to comply with company policies and may be subject to civil or criminal liability at any time, particularly in the case of impaired driving.

Let’s look at some situations that case law has shown are unfortunately more likely to occur at office holiday parties: industrial accidents, harassment and violence.

Industrial accidents

The first question is whether an injury sustained by an employee during an employer-organized holiday party can be considered the result of a work accident that could give rise to a claim before the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST). 

This question requires a nuanced answer, as case law has historically been divided on this issue, depending on the specific circumstances of the case.² Some decisions have concluded that a holiday party injury occurred “in the course of work,”³ while others have found that an injury occurred during an activity within the employee’s personal sphere.

Under the case law, in order to determine whether a holiday party accident occurred “in the course of work,” it is important to consider the relationship between the activity being performed at the time of the accident and the employee’s job. Several factors are generally considered in this analysis, including the place and time of the event, whether compensation was involved, the existence and level of authority or subordination of the employer (if the event occurred outside of the normal workplace and working hours), the purpose of the activity being performed at the time of the accident in relation to the working conditions and the usefulness of that activity to the employee’s job.⁴

For example, in the recent decision in Murphy et Ville de Léry, the Administrative Labour Tribunal (the “Tribunal”) concluded that the injury sustained by a public works employee to her right knee while participating in a “tree tossing” game at a holiday event organized by the employer for the community did not occur in the course of work. The Tribunal found that participation in the game was voluntary and outside the employee’s working hours, that it was not part of her duties and that the activity was of no benefit to the employer, thus falling more within the employee’s personal sphere.

The Tribunal reached the same conclusion in another recent case, Roy-Bélanger et Ressources Globales Aéro inc., where a human resources employee was injured on an escalator while escorting an intoxicated coworker back to his room after the employer’s holiday party.

In Fafard et Commission scolaire des Trois-Lacs, on the other hand, an injury sustained by a teacher while playing a game at the holiday party held in the employer’s gymnasium, but outside of working hours, was found to constitute an industrial accident. The deciding factors in this decision were that the work environment was considered unhealthy, as an outside company had recently been brought in to remedy the situation, and that the holiday event in question served the employer’s objective of improving the work environment.

Finally, another decision, Boivin et Centre communautaire juridique de l’Estrie, also upheld the claim of a paralegal who was injured while dancing with a coworker at the organization’s holiday party. The employee had been a member of the party organizing committee for several years at the employer’s request, and the Commission des lésions professionnelles du Québec (the “QCCLP”) considered the fact that she felt obligated to attend the event. The QCCLP also found that most of the lawyers working for the employer were present at the party and that they were in a position of authority over the office staff, indicating that the party was beneficial to their work performance and therefore not entirely outside the work sphere.

In light of the foregoing, employers have a strong interest in taking the necessary precautions to prevent accidents and to provide an appropriate holiday party space where employees can celebrate safely.

Harassment

Employee holiday parties are unfortunately also rife with misconduct and inappropriate and unwelcome gestures or comments that may constitute harassment.⁵ There is a wealth of case law dealing with complaints or disciplinary actions related to such incidents at office parties.

For example, in the recent case of Teamsters Québec, section locale 1999 et Univar Canada ltée (Jean-Martin Gobeil),⁶ an employee was suspended for three days for making a sexual gesture to a server working at the venue of the holiday party organized and paid for by the employer. The employee had stuck his index finger through the zipper of his pants several times during the evening as a crude “joke.” The server felt harassed by his behaviour, which created a hostile work environment. The arbitrator upheld the decision.

Because employers must take reasonable action to prevent harassment and put a stop to it whenever they become aware of it,⁷ their obligations are binding before, during and after a party. Employers should remind employees in advance that the employer’s anti-harassment policies still apply and to remain civil and respectful at all times during the event. It may also be wise to encourage employees to consume alcohol in moderation; for example, employers may want to distribute a limited number of free drink tickets rather than offering an open bar. During the festivities, employers must remain vigilant to identify risky situations and intervene to stop undesirable behaviour if necessary. Finally, if a problematic situation is brought to an employer’s attention, the employer may need to investigate the matter to determine what happened.

For example, in the recent case of Syndicat des salariés(es) de l’agroalimentaire de Ste-Claire c Kerry Canada Inc., Arbitrator Dominique-Anne Roy confirmed that the employer not only had the right, but was required to investigate events of a private nature that occurred in a hotel room in the hours following the employer’s holiday party. Disturbing rumours of illegal drug use and sexual harassment, possibly including gang sexual assault, began circulating in the workplace the next day. After reviewing the evidence, the arbitrator concluded that the employer had established a sufficient nexus between the personal activities of the employees involved and its business to justify its intervention.

Violence

Finally, violent words and gestures are unfortunately all too common at alcohol-fuelled office parties. Employers may be required to intervene to stop acts of violence and protect their employees.

Under section 51 of the Act respecting occupational health and safety,⁸ employers must take the necessary measures to protect the health and ensure the safety and physical and mental well-being of their workers, which, as of October 2021, includes⁹ taking measures to ensure the protection of a worker exposed to physical or psychological violence, including spousal, family or sexual violence, in the workplace.¹⁰

In the case of Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 500 (TUAC – FTQ) et Royal Vézina inc.,¹¹ an employee arrived late at the employer’s holiday party already under the influence of alcohol and punched a coworker (who was also his ex-wife) several times in the face before fleeing the scene. He was subsequently fired and eventually found guilty of assault and harassment. Not surprisingly, the termination was upheld. The arbitrator did not find that the employee’s intoxication was a factor mitigating his responsibility for his actions, including mixing medication and alcohol.

Finally, in Servisair et Association internationale des machinistes et des travailleuses et travailleurs de l’aérospatiale, district 140, section locale 2309,¹² the arbitrator upheld a three-day suspension imposed on an intoxicated employee who became angry during the employer’s holiday party at a restaurant. The employee lost his temper, started yelling, pushed a chair and threatened to break the legs of the people at the party. The arbitrator found this conduct to be a blatant lack of decorum that could damage the employer’s reputation. The arbitrator also recognized the employer’s right to take action because the behaviour occurred during an activity organized by the employer where the employee remained under its authority.

Conclusion

In short, despite the festive atmosphere and the fact that holiday parties may take place outside of the normal workplace and working hours, employers and employees must not forget that they are still bound by certain obligations. Prevention and prudence are therefore essential!

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¹ Civil Code of Québec, CQLR c. CCQ-1991, art. 2087; Act respecting labour standards, CQLR, c. N-1.1, ss. 81.18 and 81.19; Act respecting occupational health and safety, CQLR, c. S-2.1, s. 51; Charter of human rights and freedoms, CQLR c. C-12, ss. 10, 10.1, 46.
² For a recent overview of applicable case law, see: Roy-Bélanger et Ressources globales Aéro inc., 2021 QCTAT 1739 at paras16 to 19.
³ See the definition of “industrial accident” in section 2 of the Act respecting industrial accidents and occupational diseases (CQLR c. A-3.001).
⁴ Plomberie & Chauffage Plombec inc. et Deslongchamps, C.A.L.P. 51232-64-9305, January 17, 1995, B. Lemay; Minier et Commission scolaire de Montréal, 2019 QCTAT 1837.
⁵ See sections 81.18 and 81.19 of the Act respecting labour standards (CQLR c. N-1.1) and sections 10, 10.1 and 46 of the Charter of human rights and freedoms (CQLR c. C-12).
⁶ Teamsters Québec, section locale 1999 et Univar Canada ltée (Jean-Martin Gobeil), 2020 QCTA 344.
⁷ Section 81.19, Act respecting labour standards, CQLR c. N-1.1.
⁸ Supra, CQLR, c. S-2.1.
⁹ An Act to modernize the occupational health and safety regime, SQ 2021, c. 27.
¹⁰ Section 51, 1st para, subpara. 16, Act respecting industrial accidents and occupational diseases, CQLR c. A-3.001.
¹¹ Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 500 (TUAC – FTQ) et Royal Vézina inc., 2017EXPT-971, EYB 2017-281127 (F. Lamy).
¹² Servisair et Association internationale des machinistes et des travailleuses et travailleurs de l’aérospatiale, district 140, section locale 2309, D.T.E. 2009T-448, EYB 2008-161179 (N. Faucher).