In the current social context, employers are becoming increasingly aware of harassment cases that may arise within their organization. Under a number of provincial laws, employers must implement a harassment prevention and complaint processing policy, in addition to taking the necessary measures to put a stop to harassment when a situation is brought to their attention. However, as illustrated in this bulletin, the occurrence of psychological or sexual harassment is not limited solely to the workplace, and an employer may be held liable for harassment incidents that occur away from the workplace.

The Facts

In the recent decision in A.B. v. 9405-2651 Québec inc, the employee, who worked as a waitress in a restaurant, filed a psychological harassment complaint under the Act respecting labour standards (the "Act"), alleging that she had been sexually harassed by her manager. The Tribunal administratif du travail [Administrative Labour Tribunal] (the "Tribunal") had to determine whether the employee had been a victim of harassment and whether the employer had fulfilled its obligations with respect to harassment.

Although the employee alleged that the restaurant manager often approached her at work and touched her hips or arms without her consent, the event that led to her sexual harassment complaint took place on January 10, 2020, at the manager's cottage. On that date, at the end of a shift, the manager had suggested that the employee and three other employees go for a drink at his cottage, which was not far from the workplace. The employee testified that it was during the visit to the upper floor of the cottage, while the others were on the ground floor, that the manager kissed and touched her without her consent and forced her, against her will, to perform sexual acts. Following the assault, the employee, who was in shock, asked a coworker to accompany her back to her home.

The day after the events, the employee reported to work but was not able to finish her shift due to post-traumatic shock. Upon receiving a text message from the employee informing him that she was leaving early, the manager decided to terminate her employment. Two days later, the employee informed her spouse of the assault. She also informed the owner of the restaurant, who took the manager's side and told the employee that she did not believe her. The same day the employee filed a harassment complaint with the Tribunal.

A few months after the incident, the owner of the restaurant (and spouse of the manager) changed her mind and sent the employee a message apologizing for not believing her when she reported the incident and encouraging her to file a complaint with the police.

It is important to note that in this case, the employer did not have a harassment prevention and complaint processing policy as required by the Act. Furthermore, the employer did not present itself at the hearing to refute the employee's account.

The Tribunal's Analysis

In its analysis, the Tribunal did not hesitate to characterize the unwanted touching in the workplace as instances of sexual harassment and to characterize the event that occurred at the manager's cottage as a "very serious event", that is a sexual assault. The Tribunal noted that in no case, in the context of an employer-employee relationship, should the employee have been subjected to such an assault. Moreover, in the Tribunal's opinion, the fact that the assault took place outside of the workplace and outside working hours changed nothing with regard to the application of the Act.

The Tribunal pointed out that it had already been held that an employer's disciplinary powers could extend beyond the workplace and working hours when the event is directly related to the work1. More specifically, this refers to situations or incidents which, by their nature or consequence, are directly related to an employee's position or work. In this case, the Tribunal stated that [translation] "the employer-employee relationship was still present, even if the employee went to the manager's cottage," since it was the manager of the restaurant who had decided to invite his employees to have a drink after a long shift.

Consequently, in this case, the Tribunal concluded that the employer had not taken the necessary action to prevent or put a stop to the harassment and granted the employee's monetary claim.

Takeaway Points

In light of this recent decision from the Tribunal, it is clear that an employer may be liable for incidents that occur away from the workplace and outside working hours. Indeed, the Tribunal pointed out that the fact that the events occurred after working hours and at the manager's secondary residence did not mean that the Act did not apply, as long as the events were directly related to the work.

Accordingly, and in order to fully meet its obligations in respect of harassment, an employer should, in addition to having a harassment policy, ensure that the policy applies to incidents that might occur away from the establishment and outside working hours.

This is particularly true given the growing popularity of a variety of social networks where employees are able to hold discussions, for example, and where it is more difficult for an employer to control its employees' words and actions. In fact, in another recent decision2, the Tribunal concluded that there had been psychological harassment because a group of four coworkers exchanged messages in which the complainant was the subject of discriminatory, insulting and threatening comments over a period of four years, notably because the comments were repeated over time and, even though the complainant only learned of the messages on one occasion when he obtained one of his coworkers' cell phones, it had nonetheless created a harmful work environment for him. Ultimately, the complaint was dismissed, because the employer had acted diligently to put a stop to the harassment as soon as the situation was brought to its attention.

In light of the foregoing, it is important that any harassment policy be broad enough to cover situations that may arise away from the employer's establishment and outside working hours, and that an employer respond promptly once it learns that such situations have occurred.

In a context in which a psychological or sexual harassment situation is brought to your attention, or simply to ensure that your harassment policy is complete and exhaustive, it is a good idea to consult your Fasken lawyer.


1 A.B. v. 9405-2651 Québec inc: 2022 QCTAT 2401, para. 32

2 Diouf c. Aluminerie Alouette inc., 2022 QCTAT 1546.

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.