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Holiday party is work event. Choose venue carefully, limit alcohol

Date: November 28, 2007
Author: Howard Levitt
Publication: National Post

Every man is a damn fool for at least five minutes every day; wisdom consists in not exceeding the limit.  –Elbert Hubbard (1859-1915)


David Hook, the chief executive of Alberta St. John Ambulance, and Sean Hodgins, his second in command, conducted a post mortem on their company’s Christmas party: They pronounced it hugely successful. Hodgins, the organizer of the festivities, than left for a holiday, oblivious to the ruinous vestiges of his conduct at the party, where he had enjoyed a wee too much.

While Hodgins blithely vacationed, the chief executive’s administrative assistant was still seething over his treatment of her. She mulled over the company’s new sexual harassment policy and fearfully filed a complaint.

The Christmas party began at a restaurant and continued at a bowling alley. Hodgins arrived at the restaurant with his hair still wet from a quick shower before catching a ride with a female co-worker. The complainant overheard Hodgins explaining that his hair was wet because she was the youngest person to get his clothes off that fast in a long time. The comment was an ice-breaker, intended by Hodgins to put everyone in a jovial mood. The complainant failed to find the humour.

As the evening progressed, Hodgins touched her shoulder and hair, repeatedly complimenting her on her hair. At one point, he put his arm around both her and her husband, saying since they had travelled separately, she would not have to “dump her husband” to drive him home.

The evening ended badly. At the bowling alley, the remaining partiers moved the fun up a notch. When the complainant paused to deliver a shot, her husband expressed encouragement by yelling “with an ass like that you can do anything.” Hodgins joined in, repeating the comment. She testified that she knew he was trying to be funny but was embarrassed.

The chief executive met with Hodgins to get his side of the story and then summarily dismissed him for cause.

The Court concluded that all of the incidents but the “clothes off” remark were sexual harassment. With respect to the bowling remarks, it did not matter that the complainant’s husband made the comment first. The effect of Hodgins’s comment about this employee’s “ass” in relation to the work environment was obvious.

However, according to Edmonton Queens Bench Justice T.D. Clackson, to be cause, the employer must prove “that the nature and seriousness of the sexual harassment is not reconciliable with continuing the employment relationship.” The employer failed to meet this test and Hodgins was awarded one year’s severance.

To ensure the ghosts of Christmases past do not haunt your company, I recommend the following:

- A committee, as opposed to one individual, should execute the company holiday party.

- The committee should review the company’s harassment policy and infuse its sentiments into the occasion bearing in mind the party is a company event first and a party second.

- Consider the wisdom of including social activities such as dancing, for example, which may lead to physical contact.

- If a complaint is made, the interests of the complainant and the accused must be balanced.

- The punishment must fit the crime. Maintaining peace in the workplace is not the same as having cause for dismissal.

- To avoid liability for excess alcohol use, provide an alternative to driving to the event and/or limit alcohol.

Howard Levitt is senior partner of Levitt & Grosman, employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada, soon to be released.