Holiday season is almost here, and as workplace investigators, we know that during office holiday parties, some employees, managers, or directors who may have had one or two too many drinks sometimes engage in different types of misconduct – including vexatious comments or jokes, and unwelcome sexual advances or physical contact – that negatively impact individuals and that can even poison the work environment. This is borne out by the case law.
Over the years, courts and tribunals have rendered multiple decisions related to events that occurred at office holiday parties. For example, in Brampton (City) v. Brampton Professional Firefighter’s Association, Local 1068,1 a labour arbitrator suspended for three months and demoted the captain of a fire station for suggesting to a female firefighter, during the fire station’s holiday party, that she was sexually involved with other firefighters and that she might get pregnant. The captain was also ordered to attend sensitivity and anti-harassment training. However, in most cases, misconduct during office holiday parties is considered as part of a broader pattern of workplace misbehaviour, often, sexual harassment.2 This was the case, for example, in Davison (Re), where the Hearing panel of the Law Society of British Columbia found that the respondent sexually harassed some of his colleagues between October 2018 and September 2019, by making comments and gestures of a sexual nature, engaging in unwelcomed sexual advances, and touching them without their consent on multiple occasions, including attempts to kiss two lawyers at the firm’s 2018 holiday party.3
Whether these behaviours are considered on their own or as part of a pattern, one thing is clear: the respondents can be sanctioned for their misbehaviour. Depending on the context and the severity of the misconduct, respondents have been required to undergo training, been suspended, demoted, and even terminated.4 They can also have their professional licence suspended with conditions to retrieve it,5 and be ordered to pay damages to the complainants.6 In some cases, the misbehaviour can even lead to criminal accusations, where perpetrators are sentenced to house arrest or imprisonment.7
It is important for employers to remember that whatever their location, office holiday parties are typically considered to be part of the workplace. This means that they have an obligation to address misbehaviour that occurs during these festivities, whether informally or through a workplace investigation. Employers risk heavy consequences for their failure to address these matters appropriately. For instance, in Perry v. The Centre for Advanced Medicine,8 the Human Rights Tribunal of Ontario concluded that a corporation had breached its obligations to protect the complainant from sexual harassment and from having to work in a poisoned work environment after the owner of the corporation terminated the complainant’s employment following her complaint about his behaviour.9 In consequence, the Tribunal found the respondents to be jointly liable to repair the damage suffered by the complainant and ordered the corporation to develop a Workplace Harassment and Sexual Harassment Policy and to offer training on Human Rights to its management and employees.10 Similarly, in Cromwell v. Leon’s Furniture Limited,11 the Nova Scotia Human Rights Board of Inquiry held the employer responsible for the discriminatory behaviour of one of its employees, as the corporation not only failed to hold an investigation in a timely manner after being made aware of the allegations, but it did not, at the time, have a suitable anti-discrimination policy, and neither its employees nor management had received adequate training on the matter.12 Moreover, the Board concluded that the internal investigation that was held after the complainant’s resignation was flawed 13 and that the resolution of the complaint – a simple warning letter that was given to the perpetrator – was unreasonable.14
As for respondents, they might also be sanctioned for refusing to participate in workplace investigations regarding events that occurred at holiday parties. On that matter, the recent decision in Syndicat des salariés(es) de l’agroalimentaire de Ste-Claire (CSD) et Kerry Canada inc. (Richard Guay)15 is particularly interesting, as the labour arbitrator confirmed the employer’s decision to terminate the perpetrator’s employment for his lack of cooperation with an investigation that followed a “private event” that occurred directly after the office holiday party, and that had poisoned the work environment.16
The holidays are an occasion for everyone to have a good time, and no one wants this period of the year to be tainted by the need for a workplace investigation.
1 2016 CanLII 87624 (ON LA).
2 E.g.: Panucci v. Seller’s Choice Stockdale Realty Ltd., 2015 HRTO 1579 (CanLII); Ontario College of Teachers v. MacDonald, 2019 ONOCT 99 (CanLII); Ontario College of Teachers v. Scott, 2022 ONOCT 21 (CanLII).
3Davison (Re), 2022 LSBC 23 (CanLII).
4Supra note 1.
5 E.g.: Ontario College of Teachers v. MacDonald, supra note 2; Ontario College of Teachers v. Scott, supra note 2; Davison (Re), supra note 3.
6Perry v. The Centre for Advanced Medicine, 2017 HRTO 191 (CanLII).
7 E.g.: R. v. McKenzie, 2015 ONSC 5671 (CanLII) (appeal dismissed, 2017 ONCA 128 (CanLII)); R. v. R.B., 2021 ONCJ 633 (CanLII); R. v. Phillippo, 2022 ONCJ 499 (CanLII).
8Supra note 6. In this case, the complaint related to a pattern of behaviour, that included the respondent offering to buy a rose to the complainant at the office holiday party, and the respondent pulling her in for an uncomfortable hug when he gave her a holiday bonus.
9Ibid para 272, 279, 283, and 307.
10Ibid, para 326.
11 2014 CanLII 16399 (NS HRC). In this case, the complaint related to a series of misbehaviour, including vexatious comments held by the store manager’s husband at the staff holiday party.
12Ibid, para 315, 324-326, and 329.
13 More precisely, the Board found, amongst other things, that the investigator was in conflict of interest, that he failed to make findings on key aspects of information in the possession of the respondent respecting the complainant’s allegations, that he did not take into account or place weight on evidence that suggested that there was anything untoward in what happened to the complainant, and that he did not appear to understand what constitutes discrimination; Ibid, para 353-357.
14Ibid, para 389.
15 2022 QCTA 224.
16 In this case, the investigation was held after the grievor and some of his coworkers participated to an orgy and consumed drugs after the office holiday party, and that lead to rumours of sexual assault and sexual harassment circulating at work.
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