You are here

Holiday Party Fallout of Another Kind

I have written many times on the topic of avoiding litigation resulting from serving alcohol to employees at office parties. That scenario can, and has, led to expensive liability for employers when a tragic accident is the result.
 
Another way that holiday parties can cause an employer to end up being sued is when one of its employees engages in sexual harassment.  In these instances, the employer is put in the difficult position of having to decide whether the offending employee must be dismissed summarily.
 
A recent court decision out of Alberta illustrates this very scenario. Sean Hodgins was a senior manager working with the St. John Ambulance. In December, 2003 Hodgins was at a Christmas party involving the staff of the employer’s Edmonton branch and provincial headquarters.
 
The party involved dining out at a local restaurant and then going bowling. As a result of that evening, Hodgins was the subject of four complaints of sexual harassment by one employee.
 
The person complained that Hodgins was overheard saying that the woman who drove him to the party was the “youngest person to have gotten his pants off that fast in a long time”. She also complained that, throughout the evening, Hodgins had been complimenting her on her hair and, on one occasion, put his hand on her shoulder (thus coming in contact with her hair).
 
Her third complaint was that Hodgins had put his arm around her and said she “should ditch her husband and come home with him”. Finally, she complained that (at the bowling alley) Hodgins repeated a comment - first made by her husband - that “with an ass like that you can do anything”.
 
The reaction of Hodgins’ employer, the St. John Ambulance, was to dismiss him in January after the complaints were filed. Hodgins responded by suing the employer for wrongful dismissal.
 
At trial, the Court cited the employer’s definition of harassment as “any unwanted physical or verbal comment or conduct that offends or humiliates an individual”. It also cited the accepted common law definition of sexual harassment as any “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences”.
 
The Court commented that a finding that an employee has committed a sexual harassment offence is a significant event, a black mark on the record of the employee. It also commented that the seriousness of any resulting discipline must depend upon the seriousness of the harassment.
 
The Court found that an employer relying on sexual harassment as a basis for discipline must establish that the conduct complained of occurred, that it was reasonable to conclude the complainant was offended, and that the event could detrimentally affect the work environment or lead to adverse consequences for the complainant. When the chosen discipline is summary dismissal for just cause, the employer must go one step farther and establish that the events irreconcilably undermined the employment relationship.
 
The Court described Hodgins’ “pants off” comment as ribald and reflecting sexual innuendo. However, it viewed the occurrence as innocuous and determined it was not reasonable to conclude the comment would be offensive.
 
In relation to the hair compliments and the touching, the Court noted that compliments and physical contact between employees are “fraught with danger”. It determined that this event was, although quite minor, an instance of sexual harassment.
 
Hodgins’ “ditch your husband” comment was viewed by the Court as a clear instance of sexual harassment. Offence was taken and, in the eyes of the Court, reasonably so. Finally, the “ass” comment was seen by the Court as embarrassing to the complainant and it characterized her reaction as reasonable and even predictable.
 
As a whole, the Court found that Hodgins’ conduct was harassing and that the instances were, individually and cumulatively, serious in the sense that they could have a detrimental impact on the workplace. However, the complainant’s job was not threatened and she did not suffer in any other identifiable way.
 
The Court applied the now familiar contextual and proportional approach to discipline which arose out of the Supreme Court of Canada’s 2001 McKinley v. BC Tel decision. Applying this approach, the Court determined that St. John Ambulance did not have just cause for summary dismissal of Hodgins.
 
The Court mentioned that sexual harassment is one of those serious offences which can justify summary dismissal even if the employee’s prior record is clear.  But the Court emphasized that the context must be considered. There is a scale or continuum of seriousness, from the relatively innocuous joke with a sexual connotation, through groping and other conduct which is unmistakably sexual, to acts of sexual violence.
 
In this case, the Court found that the St. John Ambulance had failed to prove Hodgins’ conduct had irreconcilably undermined the employment relationship. Summary dismissal, therefore, was not justified.
 
The Court found that Hodgins’ conduct fell towards the lower end of the scale (or continuum) of seriousness. It determined that he did not intentionally undermine his employer’s harassment policy. It concluded there was no evidence that the workplace environment had actually suffered.
 
Hodgins was, as a result, awarded $100,000 in damages (being 12 months of salary plus an annual bonus). This was surely a bitter end to a saga which the St. John Ambulance must be wishing it had never gotten into. Before next year’s holiday party, this employer would be well-advised to repeat the Court’s “fraught with danger” comment to its management.

 
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.