When I started law school more than 30 years ago, our professors promised to teach us to think like lawyers. What they didn’t tell us is that once we learned to think like lawyers, we wouldn’t be able to turn off our “lawyer brains” — even when watching movies, such as the recently released Office Christmas Party.
Featuring excessive drinking, sexual activity and a total disregard for commonsense health and safety rules, the movie about an office party gone disastrously awry got me thinking about the legal liabilities and insurance risks all employers face at their holiday parties. With the season already in full swing and in the spirit of giving back, I outline below some very un-cinematic legal pitfalls both employers and employees should take to heart.
Occupational Health & Safety
Many employers are surprised to learn that an injury at an office party can trigger occupational health and safety liability. One of the best examples is provided in the tragic death of Nathaniel Wai-Kit Shair at a Calgary Stampede party on July 12, 2007. Nathaniel’s employer, XI Technologies, rented a calf-roping machine for the amusement of employees and clients. Unfortunately, Nathaniel was struck in the head and killed while operating the machine.
After a lengthy series of court battles, the Alberta Queen’s Bench assessed XI-Technologies a fine of $100,000 for failing to ensure the health and safety of an employee and a further $175,000 fine for failing to ensure that “all equipment used at a work site would safely perform the function for which it was intended.” The Court recognized that the company had a clean safety record and had demonstrated “heartfelt, genuine remorse over what was occurred.”1 Nonetheless, a gorgeous summer evening ended in tragedy.2
Social Host Liability
As a young professional, excess drinking at an office party was almost a rite of passage. I still remember an unfortunate staff member who was summarily dismissed after spectacular misconduct due, no doubt, to the equally spectacular amount of alcohol he had consumed. Employers, however, are often concerned about larger liability issues.
In Hunt v. Sutton Group Incentive Realty Group Inc.3, Linda Hunt sued her own employer after sustaining injuries in a car accident she caused on Dec. 16, 1994 while under the influence of alcohol. The case was complex from both a legal and factual perspective, since Ms. Hunt left her employer’s party in the afternoon and went to a restaurant, where she had more to drink. The case appears to have been settled out of court after a lengthy legal battle, but the wide-ranging publicity sent a clear message to employers to be much more careful about alcohol at parties.
Companies have employed a number of techniques to reduce their exposure to alcohol-related incidents. There is an often the obligatory reminder to employees about company expectations at the holiday party. More common techniques include:
- Using drink tickets to limit the number of drinks consumed by each employee
- Providing taxi chits to and from events to reduce drinking and driving accidents
- Ensuring that serving staff are properly trained
Termination for just cause
Alcohol is often the root of many office party disasters. Case law reveals facts that are almost as spectacular as the one depicted in the Office Christmas Party. I’m often asked if an employer can terminate an employee for just cause for alcohol-related misconduct. In Canada, however, alcoholism is protected as a disability under various Human Rights Codes across the country.4 Nonetheless, alcohol-related misconduct can lead to a termination for cause in the right circumstances. In van Woerkens v. Marriott Hotels of Canada Ltd.5, a manager with 22 years of service was found to have been terminated with just cause due to alcohol-related sexual misconduct. The facts involved excessive consumption of alcohol, dirty dancing, allegations of sexual assault and misleading an investigator.
Aside from the events that occurred on Dec. 10, 2006, Mr. van Woerkens was recognized by the court as being an excellent employee. His career was destroyed in one night, largely due to the lack of judgment that is often associated with excessive drinking.
Despite all the precautions employers might take, incidents and accidents do occur. If your holiday event ends up with an incident, take two aspirins and call your employment lawyer in the morning for advice.