Tis the season to remind employers and employees it might be
best to ho, ho, hold off on the merriment. The very public
incidents involving Jian Ghomeshi and Ray Rice, and the suspension
earlier this month of two Ontario Hockey League players for nearly
a quarter of the season for sexist remarks made public on social
media, provide a well-timed reminder that behaviour at
"play" can lead to dismissal for cause. Whether online
(at work), or offline (at the office party), the test for cause
remains the same: Is the behaviour sufficiently odious? Has the
employee been warned for similar misconduct? Has the employer
clearly set out the consequences of such misconduct? Have the
actions caused irreparable damage to the employment relationship?
Is a warning sufficient or is the conduct so egregious as to
warrant dismissal even without past warnings? One such example is a
case where Kitchener, Ont.-based Mitchell Plastics moved quickly to
terminate Trevor Huffman after he became drunk and belligerent at
its party. At first just noisy, Huffman ended the evening making
physical threats to management and a slew of sexually inappropriate
remarks toward colleagues and their spouses. He launched a Human
Rights complaint, claiming the company was ultimately responsible
because management knew he suffered from alcoholism. The Ontario
Human Rights Tribunal dismissed his application. Turns out he was
fired for being a threatening drunk, not for having an addiction. A
holiday party is a work event and the same rules apply. It is the
employer's job to ensure its employees know that. Being fully
transparent about the repercussions for misconduct will help avoid
litigation. Employers usually want to know what they are
responsible for if matters go awry? The answer is virtually
everything from: Harassment ("I complained about John Smith
coming on to me at the party, but no one did anything"), to
injuries resulting from a serious automobile accident ("I was
clearly drunk when I left the party — no one took away my
keys," — yes, you take an employee's keys to prevent
them from driving while impaired); and damage to the venue or its
property; or even slips and falls caused by drinks carelessly
spilled on the floor, if an employee alleges you did not ensure the
employees were in a safe place. Be particularly cautious about
employee behaviour. Don't assume people will be receptive or
playful when the vice-president dresses up as Santa and asks for a
kiss under the mistletoe. Holiday hugs might be viewed differently
by the recipient. Promises made for an employee's future, in
the irrational exuberance of intemperance, also can lead to
subsequent legal liability when they are not met.
After reading this sobering reminder, if you still insist on
hosting an event, here is some guidance:
Ensure your policiesare clear If
your harassment policy doesn't specify it applies to
social events, revise it.
Stay sober Ensure you and the management team
refrain from drinking so you don't hamper your ability to
manage your employees, just as you would at work.
Make transportation arrangements While you cannot
forsee every poor decision your employees might make, the law
requires you to make reasonable efforts to ensure no one drives
while intoxicated. Make taxi chits or subway tokens available. It
is also a good idea to have members from the management team
stationed at the exits to spot employees who should not
Hold the party off-site It may cost a tad more,
but the restaurant or banquet hall is technically responsible to
ensure patrons are cut off when they become drunk. This does not
completely eliminate your obligation to take steps to ensure your
employees are safe but shifts some of the blame to the restaurant
Use drink tickets Two per person is plenty and
don't give any to non-drinkers. This sends employees a clear
message they are there to enjoy a drink or two, not get
Invite the family In my experience, inviting
significant others may reduce offensive conduct and temper
Don't insist on attendance Some employees know
they can't handle awkward mingling with their supervisors and
alcohol at the same time.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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