Although we are in the middle of the office holiday party season, some employers choose, for various reasons, not to organize such events. However, this does not prevent employees from taking the initiative to organize their own party.
In such a situation, what are the employer’s responsibilities? Do they have the same duties as when they organize and finance the festivities?
Limits of the Employer
The employer has neither the responsibility nor the duty to monitor all the actions of its employees at all times and in all places. However, they may have to intervene when events have a significant impact on the work environment, even if the litigious actions took place outside of the workplace.
In the case of psychological harassment, for instance, the employer must take reasonable steps to prevent its occurrence and put a stop to it, as the case may be. Although this obligation applies primarily in the context of the company’s physical premises, it is possible that certain external events may require an intervention, including in the context of a holiday party organized by employees. Thus, if a misconduct is so serious that it affects the workplace, and the employer has not taken reasonable steps to prevent it or has failed to intervene, it is possible that they may face a lawsuit. The saying “what happens here stays here” is of little help when the consequences of the events in question extend beyond the office walls.
What about the investigative power?
What steps should an employer take to investigate an incident at an event not organized by the employer?
Arbitrator Dominique-Anne Roy addressed this issue in Syndicat des salariés(es) de l’agroalimentaire de Ste-Claire (CSD) et Kerry Canada inc. (Richard Guay). In this case, the employer had organized a Christmas party. While the return transportation was provided by the employer, some employees diverted from the agreed upon route and decided to finish the evening in a hotel. Representatives of the employer discovered the next day that alleged acts of sexual assault and harassment may have occurred in the hotel, allegations that radically altered the work environment. As rumours circulated, some employees looked at those involved with suspicion or ignored them. Some employees also refused to work the same shifts as those that were at the hotel. The events had an impact on the work climate and the organization. The arbitrator had to determine whether the employer was entitled to investigate a private event which occurred outside the workplace. She ruled in the affirmative.
The ratio decidendi is clear: employer intervention is justified if a sufficient link exists between the activity of employees and the company’s operations, as in this case. The arbitrator also added that in such circumstances, employees must cooperate in the investigation because of their duty of loyalty to the employer.
How far can an employer go?
The power of the employer to intervene has its limits. In Syndicat de la fonction publique et parapublique du Québec et Société de l’assurance automobile du Québec (Joffrey Lemieux), arbitrator Claude Roy had to determine whether the employer could sanction an employee for an act committed during a party organized and financed by employees. The Christmas party occurred outside of the workplace and outside working hours. The employer reprimanded an employee for having committed an inappropriate act, namely throwing a ping-pong ball down the blouse of a colleague and friend during the party. There was no formal complaint, and the employee involved considered it harmless. Citing certain authors, the arbitrator’s decision states that: “the employer is not a prefect of discipline or any substitute for the Attorney General with regard to employees” He concluded that an employer does not have the power to impose a disciplinary measure to an employee for an act that has no connection with the company’s operations nor affects employee relations.
To summarize, an employer should not impose any sanctions for an act that is related to the company’s operations. However, the employer does have the responsibility to investigate and potentially act when a reprehensible act committed by an employee in his private life disrupts the company’s work environment. Therefore, some vigilance may be required regardless of whether the party is organized by employees or the employer.
Happy Holidays to all!
